MISCARRIAGE OF JUSTICE-SALLY CLARKE-UK

Sally Clark - victim of a miscarriage of justice

Sally Clark - Friday 16th March 2007

“It is with the very greatest sadness that Sally Clark's family announces that Sally was found dead at her home this morning, having passed away during the night.

The matter is in the hands of the coroner and it is too early to provide any further information. Sally's family very much hopes that the media will refrain from making any enquiries or attempts to contact them at this painful time.

Sally, aged 42, was released in 2003 having been wrongfully imprisoned for more than 3 years, falsely accused of the murder of her two sons. Sadly, she never fully recovered from the effects of this appalling injustice.

Sally, a qualified solicitor, was a loving and talented wife, mother, daughter and friend. She will be greatly missed by all who knew her.

NB: There are restrictions on any photographing or reporting of the family or their home.

Any media enquiries which are genuinely essential should only be routed to
Sue Stapely
Quiller Consultants
T: 020 7233 9444
M: 07885 798833 “

CHILD ABUSE OR BAD MEDICINE?

“This report of Sally's trial was written by her father, Frank Lockyer, QPM (Queen's Police Medal), retired Divisional Commander of South Wiltshire police force:

Following the tragedy of Sally's conviction the kindness, sympathy and support offered has been overwhelming. Newspaper reports covered only the four prosecution days of a 17-day trial and it concerns me that the public cannot possibly know the full facts. They cannot be aware that five eminent paediatric pathologists gave evidence in support of Sally or that midwives, health visitors, friends and neighbours, not to mention husband Steve, all confirmed that they had rarely seen a stronger bond of love between a mother and her children. Nevertheless, it is encouraging that so many are perceptive enough to write "there is something wrong somewhere." I am anxious that a balance is put - as indeed it was to the court but astonishingly rejected by ten members of the jury.

Baby Christopher was born on September 22, 1996, and found dead in his Moses basket at 11 weeks. Death was certified as "natural causes" and Sally and Steve decided that the best bereavement therapy was another baby.

Harry was born on November 29, 1997, and eight weeks collapsed in his bouncy chair.

The only common factor, which may or may not be relevant, is that both deaths followed shortly after vaccination. [There is research into the possibility that these vaccinations can cause death within a few days if infants have certain genetic defects.]

Case history written in January 2000 by Sally's father, Frank Lockyer

Sally and Steve arrested

Mindful of a possible genetic problem Sally and Steve asked for specialist pathological examination - as did the hospital paediatrician. Unfortunately, this was ignored and the post-mortem was performed by the local Home Office pathologist, Dr Williams.

After four weeks' delay, during which Sally and Steve had made several enquiries as to progress of the autopsy, both was arrested.

Dr Williams reported retina and brain damage attributed to "baby shaking". The case was later referred to Professors Green and Meadow, a team well known in the profession and media for their campaign that up to 40% of cot deaths are in fact abuse, who thought it "likely" but were cautious enough to then recommend the cause of death as "unascertained."

This prompted a review of Christopher's death, following which the original certificate of natural causes was replaced by smothering. Consequently, in July 1998 Sally was charged with the murder of both babies - a prejudicial move when neither case stood up alone.

Over the next 14 months the Prosecution, culled support from Drs Smith and Keeling and the Defence assembled eight eminent paediatricians and pathologists, each expert in a particular specialisation.

The Evidence from the post mortems

Three days before the trial, Professor Green was brought to London to meet the defence expert, Professor Luthert, the leading retinal surgeon in Europe, at Moorfields Hospital, following which Professor Green admitted that his original diagnosis of baby shaking was wrong. He made a further statement that his original statement and evidence at the committal should be totally disregarded. But he then put forward the possibility that Harry had been smothered, which had cautious support from Smith and Keeling though Dr Williams not only maintained his original diagnosis of baby shaking but also disagreed that there was any evidence of smothering.

In the case of Christopher, the Prosecution was based on blood traces in the lungs and a slight cut inside the lip as evidence of smothering. Despite that, 14 months earlier Dr Williams had found nothing suspicious and had certified "Natural causes." At the trial, Professor Green claimed blood traces in the lungs whilst at the committal he had said there was NO blood in the lungs. He explained the discrepancy by saying he had been busy at the time and had not had time to look properly!

The Defence attributed the bloodstaining as being from the nosebleed suffered a week before and the cut lip to resuscitation in the ambulance, a not unusual mishap. Professor David, the independent consultant, thought the symptoms consistent with a pulmonary ailment and remains convinced that "natural causes" cannot be ruled out.

Bruising on the leg was post-mortem and attributable to hand-held resuscitation. This was the medical evidence on which Sally was convicted of abuse of Christopher.

In the case of Harry, as explained, the trauma/retinal injuries at first thought to be shaking was conceded by both sides (except Williams himself) to have been caused during the post-mortem. There was an old fracture of the rib suffered at 1-4 weeks of age, that had healed naturally, which, though unexplained, is not unknown in young babies and had caused no discomfort and certainly had nothing to do with death. The Prosecution relied on slight hypoxia as evidence of possible smothering which was not only dismissed by Dr Williams himself but also by the Defence medical team as present in all cot deaths to some degree and which is part of the dying process. That was the medical evidence on which Sally was convicted of abuse of Harry.

Evidence from hospital, health visitors, neighbours, and the nanny

It was agreed by ambulance men, nurses and hospital doctors that there was not a mark on either baby on arrival at the hospital. It was agreed by all the Defence medical team that the abuse alleged by Williams could not be occasioned without leaving marks. It was agreed by the clinic staff that both babies were bonny and thriving when regularly examined, including a few hours before death. It was agreed by midwives, health visitors, neighbours, the daily nanny, and husband Steve that there was at all times a strong bond of love between mother and child. It was agreed by the medical witnesses on both sides (again except Williams) that the cause of both deaths was "unascertained." The public cannot have known this as the newspapers reported only the Prosecution evidence. Neither could they know that Williams' pathology was described variously as "a blood bath"; as "cavalier, proved wrong in every area"; "never seen so many inconsistencies in a pathology report"; "no weight can be attached to any of the findings in a lot of contradictions."

This was summarised by counsel as "That catalogue of errors of findings and interpretations fills me with horror that this is the foundation of this woman being charged with murder."

Yet, Sally was convicted on both counts and is now serving two sentences of life imprisonment. How could this have happened?

Why the conviction?

Faced with no motive, no aggressive act and no cause of death, the speculation must be that 10 members of the jury who convicted were swayed by the sheer prejudice of the statistic cited by Professor Meadow - that two cot deaths are a 73 million to one chance. He is not even a statistician. Alternatively, the "one-liners" innocently offered by Steve and Sally themselves when interviewed by the police. They agreed that Sally took time to settle up North until she made friends; that ideally they would have waited for a family until her legal career was established, but her biological clock was ticking and they decided on a family; that, yes, Sally did like to look smart and wondered whether she would get into her dresses again. All this trotted out by the Prosecution as a depressed mother, a career girl with a comfortable life style who did not want a family! Or, maybe the jury were swayed by inferences that Sally was rather too upset at the hospital; or after waiting four weeks she was rather too anxious for the autopsy report; or that she demonstrated Harry's collapse wrongly; or the exploitation of minor discrepancies on the sequence of events on the night. Inferences in the Prosecutor's speech but never supported by evidence.

The consensus is that, backed by five eminent specialist professors, the Defence won the medical arguments and the jury's verdict astonished everyone present. The speculation is that the jury did not understand the medical evidence and took sound bites, reaching a majority decision on the disbelief that "lightning could strike twice" - plus the damning statistics from Professor Meadow, which are universally refuted even by the authors of the report from which the purports were made.

Cot deaths - murders?

Statistics vary according to source but the loss of two babies is more common than supposed - even two cot deaths. Cot deaths are those with no obvious cause and no unusual features but contrary to reports Sally and Steve have never claimed two cot deaths - indeed Christopher was certified as "respiratory infection". The figures from the Care of Next Infant charity (CONI) are one cot death in every 8,500, but after one cot death, the risk of a second actually increases to one in 200.

The formula 1:73 million (five times smaller than the chance of winning the lottery) is dangerous nonsense. At least, it was dangerous to Sally and will be for every grieving mother hereafter when, following a double death, it is transposed as the chance of a mother telling the truth being 1:73 million.

Professors Green and Meadow are men with a mission who advance their isolated theory that up to 40% of cot deaths are murders. "Think dirty," advised Green in a recent "Daily Express" feature, which so upset the CONI organisation.

The report of the confidential enquiry into stillbirths and deaths in infancy (CESDI) published on February 1, 2000, after a thorough examination over three years, assessed maltreatment, including deliberate harm, as well as neglect or extremely poor care, as probably in the region of 6%, which confirms the "up to 40%" claim as dirty thinking indeed.

So, what have we here? Sally convicted of murder on the evidence of pathologist Williams who, in the case of Christopher, had some 14 months earlier ignored the evidence he now cites as murder; then in the case of Harry, stands alone that he was shaken, which is not even supported by the other Prosecution medical witnesses and certainly refuted by the Defence. Next, in the case of Harry, we have Green who for 20 months persisted that he had been shaken but who, 72 hours before the trial, admitted that he was wrong and substituted smothering - and was then contradicted by Williams! A conundrum perpetuated by Drs Keeling and Smith, the other two members of the Prosecution team, who could not be certain whether death was natural or unnatural and thought it should be "unascertained." Meanwhile, the hypoxia on which the smothering theory is based was dismissed by the Defence team as present in all cot deaths as part of the dying process.

The Prosecution's medical evidence changed completely between committal and trial, prompting one paediatrician to say in court that he had never previously been involved in a case where so many of the Prosecution's medical findings crumbled to dust!

What now?

I'm afraid I cannot do justice to this unbelievable story in less than 2,000 words. "Unbelievable," as before this experience had anyone told me this story I would not have believed it. As her father my belief in her innocence is open to the jibe “ . . . well, he would, wouldn't he?" I take comfort from the fact that everyone who knows Sally, who saw her preparing for her babies, and saw her joy at their birth and her grief at their deaths, shares my belief in her innocence. They were my grandchildren and there is no way I could condone abuse. I never underestimated the prejudice of the Crown Prosecution Department's tactics in charging two deaths to be heard together. I did underestimate the credulity given to the bogus statistics and cosmetic trimmings, as against the weight of the evidence that there was not a mark or "mechanical " injury to either child nor a cause of death. However, I am biased of course - you must make up your own minds.

Yes, following the death of Christopher, Sally did have a breakdown leading to depression when one of her escape routes was occasional binge drinking. Nothing of the scale made of it in the newspapers and in no way did she drink whilst nursing her babies - as accepted by the judge in excluding all reference during the trial.

I'm afraid it has become a feature of big trials, particularly where conviction is unexpected or appeal likely, that someone puts the boot in to influence public opinion.

No, lest you wonder, there is no question of infanticide. Sally is clear that she will not pretend she murdered her babies just to escape on probation.

Yes, we now have our third baby, further evidence if it is needed that she wanted children. After initial worries with immunity deficiency, which may or may not be relevant, he thrives - but he needs his mother as a family.

My priority now is to further an appeal and have Sally released. Then to campaign that the autopsies for baby deaths should be done by a paediatric pathologist. Too many mistakes are being made and parents wrongly put under suspicion. Our postbag bears witness to that and also confirms that the incidence of two baby deaths in one family ridicules the statistics of Professor Meadow as wholly fallacious which, repeated as it was in every media report, was so prejudicial not just for Sally but also for future mothers.

If you have knowledge of infant cot deaths, or of two infant deaths in one family (cot or otherwise) then please write to me, Frank Lockyer, 2 The Meadows, Milford, Salisbury, Wilts. SP1 2SS or to the Portia Campaign.

Finally. Such does this country regard its "sacred cow" the jury system, that it is not easy to launch an appeal. It cannot just be said that the jury got it wrong - there has to be new evidence of perverse procedure. So please retain this summary for future reference as, should the pending appeal not be successful, we may need to enlist your help in a campaign.

The first appeal

Given that everyone at the original trial (including we're told the Crown Prosecution Service) did not expect her to be convicted, we appealed with confidence. It was "inconceivable" that Sally could lose. However, she did -much to the surprise of the experienced journalists present -, which may account for the unswerving support we have since received from the media, including legal and medical journals. How did it go so wrong?

The consensus is that the jury were influenced by that prejudicial statistic. However, the Appeal Court, whilst accepting that the statistic was wrong, thought it would not have influenced the jury unduly; and that there was other evidence. This ruling has been described by a leading QC (not connected with the case) as a "breathtakingly intellectually dishonest judgment".

The Appeal Court accepted the controversial evidence of the initial pathologist, crediting him as a "paediatric" pathologist, which he is not. Supported as he was by one expert who presupposed the pathology to be competent. It seemed not to matter that five eminent paediatric pathologists were scathingly critical of that pathology and disputed the findings. Nor that three of the prosecution's experts disputed much of the pathology and thought that the deaths should be `unascertained'

Baby Christopher's death was first certified as `natural causes', with some experts convinced that he died of respiratory infection. Some fourteen months later, following the second death, on the very same findings, his death changed to smothering.

Baby Harry was first said by the same pathologist to have suffered retinal haemorrhages and other signs of shaking. Twenty months later, and three days before the trial, the Defence proved that there were no retinal haemorrhages - and the prosecution's expert admitted that he had been confused by the slides! Over the intervening weekend, though the findings otherwise remained unchanged, Harry's death changed to smothering!

At committal the evidence had been that Harry showed no signs of smothering - now he did!

At committal, the evidence was that Christopher had no blood in his lungs but now there was "lots" - a contradiction explained by the prosecution's expert that he had been too busy to look at his notes.

At committal another prosecution expert opined that Sally's reactions were consistent with other mothers who had abused children, but, pressed to produce this research, he discovered that his secretary had shredded the papers!

Perhaps the most blatant contradiction was that the pathologist on whose autopsy the prosecution was founded had said at Committal that there was no pathological evidence that Harry had been smothered. However, both cases proceeded based on smothering for which both the presence and absence of physical signs can be consistent. There is no test known to science to prove that a baby has NOT been smothered. No mother is safe.

Only the pathologist and the one expert who seemingly accepted his pathology without question stated unequivocally that the children died unnatural deaths. The five defence experts stated that the findings were art factual, non-specific or just plain wrong. Even the three other prosecution experts demurred saying that the deaths should be recorded as `unascertained'. The pathologist could not explain how the injuries he claimed could possibly be occasioned without damage to the surrounding tissues, of which there was none. Sally was convicted on this stuff.

Contrary to some reports, Sally has not claimed the deaths were SIDS. She simply knows they were not murders. It is manifestly unfair that the Judgment should criticise that Sally had given no explanation. Particularly ironic given Sally's request that a specialised pathologist should do the second autopsy - which was ignored.

It is a matter of record that there was not a mark on either child on admission to hospital. There is no evidence other than that Sally was a very devoted mother under whose loving care both children thrived. This was confirmed by everyone in daily contact, including doctors, nurses, midwives, and the resident nanny.

I do not believe anyone set out to stitch up Sally. But I do believe that from the moment retinal haemorrhages (a classic sign of shaking) were mistakenly diagnosed, minds were made up. Everything found, said, or done was translated as a pointer to murder. When, three days before the trial, the vital plank of retinal haemorrhages was pulled from under, both cases effectively collapsed. However, over that weekend the case was saved for it had become too embarrassing to withdraw.

In the absence of direct evidence, the prosecution centred on circumstantial evidence - that Sally harboured career ambitions; that moving North had made her depressed; that her grief at the hospital was overreaction (whereas the paediatrician on duty thought it perfectly normal); perhaps the most nauseous being the interpretation of a fun letter written as from baby Harry to his Granddad, which included "I like to look angelic all day but at night prefer to keep Mummy and Daddy awake..." - allegedly revealing a harassed Mum with a propensity to murder! Nothing throughout years as a police officer prepared me for such repugnant tactics. Not circumstantial `evidence' but rather circumstantial speculations culled from innocent communications distorted.

Sally is where she is because of bad medicine, bad statistics, and because the will to win prevailed. The jury, doubtless confused by medical contradictions, fell back on sound bites to reach a majority verdict 10-2.

The Appeal Court chose to second-guess the jury - a matter of growing concern among senior lawyers. That they accepted the evidence of the pathologist, supported by only one of the experts, against five eminent defence experts, and in critical respects also, three of the prosecution's experts, is a paradox that bewilders medical and legal observers alike. Possibly the mistaken belief that the pathologist was a specialist prompted misplaced confidence.

Equally disturbing is the presumption by the Appeal Court that Sally and Steve lied. Given opportunity, there are independent witnesses who will confirm that they did not. Matters excluded at the trial as irrelevant and prejudicial were introduced in the Judgment, which given opportunity could have been refuted. This seems an affront to natural justice, particularly when the quid pro quo was to curtail character witnesses who would have confirmed Sally as an impeccable mother.

If you find this unbelievable, I am not surprised. I would not have believed it two years ago.

It was a great morale booster when last summer the Solicitor's Tribunal declined to remove Sally from the Roll - indicating, we believe, the concern felt throughout the profession.

Sally remains in prison where the Governor and Staff show every possible consideration. She has her son for "one glorious day a month". Whilst she has her down days, she remains resolute with the support of her husband Steve and Lesley our excellent Nanny.

Since Sally obtained a good degree, qualified as an Associate of the Institute of Bankers and later as a Solicitor, to become a successful Venture Capital Lawyer, it is easy to be a proud father. That she then put her career on hold to start a planned family when things went so disastrously wrong does not lessen that regard. Indeed, I am immensely proud of how she is coping with adversity - an even greater test.

For a country that keeps a critical eye on systems of justice elsewhere in the world, the enormity of this injustice is frightening.

C. Frank Lockyer,
2 the Meadows, Milford, Salisbury, Wilts. SP1 2SS
1st January 2002”.

SallyClark’s case was listed for hearing once again by the Court of Appeal from 28th - 31st January 2003. She was represented by Clare Montgomery QC.

“The support of well wishers was greatly appreciated by Sally and her support team.

Progress, before July 2002, on new evidence relevant to a second appeal

• Peter Fleming, Professor of child health at Bristol U., who wrote the government report that first mentioned the notorious one-in-73 million figures, said, "This statistic was never intended as an estimate of real risk. It was never meant to suggest that this was an unnatural occurrence. "This statistic is of no relevance to a jury trying to understand whether babies had died naturally or unnaturally. It was used completely out of context and so, without explaining how it was arrived at, it is potentially misleading and dangerous."
• New research by Dr Douglas Fleming shows that Christopher died near to the peak of a national lung infection epidemic.
• Manchester University's Dr David Drucker and colleagues have identified a `cot death gene', whose existence firmly knocks on the head the assumption in Meadow's evidence that cot deaths occur independently. “

Statement by Sally Clark on having her conviction quashed by Court of Appeal

Wednesday 29th January 2003

“Today is not a victory. We are not victorious. There are no winners here. We have all lost out. We simply feel relief that our nightmare is finally at an end. We are now back in the position we should have been in all along and plead that we may now be allowed some privacy to grieve for our little boys in peace and try to make sense of what has happened to us.

I would like to thank the hundreds of people who have written to me since my conviction to offer me their support. These letters have been my lifelines, a source of great comfort, especially during my blacker times, and I have read and re-read every one. Not only is it incredibly kind and thoughtful of people to take the time and trouble to write to me, but also a number of them have been courageous enough to share very personal memories and relive painful experiences in the hope that it might be of some help. I told them that one day their faith in me would be seen to have been justified. That day has come.

I would like to thank the Governor, staff and inmates of Bullwood Hall prison for their compassion and understanding. Be in no doubt, it was a tough experience to be in prison, but the support that I received whilst I was there made it much more bearable. They say that friendships are often forged in the most unlikely situations. I leave behind a number of acquaintances and two close friends who have lived every moment of this ordeal with me. I would not have made it this far without them. It would not be appropriate to mention them by name. They know who they are, but my promise to one of them that I will do all I can to ensure that justice is done for her as it has been done for me today still stands. I will never forget them.

I would like to say a particular thank you to my legal team: Mike Mackey of Burton Copeland, and John Batt, my solicitors, without whose tireless hard work, commitment in the face of adversity and ceaseless belief in my innocence, none of this would have been possible. Clare Montgomery QC for her amazing grasp of the detail of my case and her peerless advocacy. Marilyn Stowe for helping us trace that crucial medical report. The same goes for Sue Stapely and David MacKay who kept the world informed of the injustice I had suffered and whose advice and guidance were invaluable throughout. There are so many others, too numerous to mention. I only hope that they will not be offended that I haven't mentioned them all by name. Each one deserves my personal thanks.

I am also grateful to the members of the Solicitors' Disciplinary Tribunal who in May 2001 had the courage and sufficient faith in me to allow me to remain on the Solicitors' Roll and offered me the first glimmer of hope for many months.

Thank you also to all my friends out here, many of whom have been in court today, who have shown me unwavering and unconditional support and loyalty. It would have been understandable perhaps for them to have written to me when all this first happened, but then to have felt that they had done all they could and that it was time to move on. However, no, they have been at my side throughout. Their friendship means so much.

The same goes for my family and, in particular, my Dad. For as long as I can remember, I have always wanted him to be proud of me and have tried to live my life, respectful of those in authority and in accordance with the morals and values taught to me by my parents as a child. Despite my innocence, there have been times throughout all of this when I have felt that I have let him down in some way. Yet, he has stood by me, and not only that, worked tirelessly alongside my legal team to secure my release. Not what he had planned for his retirement? I only hope that he is proud of me today. I am certainly proud of him.

Finally, my husband, Steve, who together with our little boy is my life. He has stood by me and supported me throughout this whole nightmare, not through blind love or unthinking loyalty, but because he knows me better than anyone else and knows, how much I loved our babies. He has been my rock and I love him now more than ever. Being separated from him for so long has been a living hell. Being deprived of more than three years of being a mum to our little boy has been even worse. Yet, somehow, despite our separation and against all the odds, we have managed to remain a family and stay close. My little boy knows that he has a mummy and a daddy who love him very much and love each other very much and that's what counts.

May we now be allowed the privacy to rebuild our lives, to move forward and to learn to be a proper family again?” Sally Clark

 
 Clare Montgomery QC's skeleton argument for the Appeal hearing.
 
 
 
 
 
“IN THE COURT OF APPEAL (CRIMINAL DIVISION) 2002/3824/Y3
 
 
IN THE MATTER OF A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
 
 
 THE QUEEN
 
 
 v.
 
 
 SALLY CLARK
 
  Appellant
 
 _____________________________
 
 
 
 SKELETON ARGUMENT ON
 
 BEHALF OF SALLY CLARK
 
 
 _____________________________
 
 
 
 
 For nearly three years after the death of Harry Clark, his mother Sally
Clark, her lawyers and their medical advisers believed that there was not
Any evidence of infection or any possible natural explanation of his death.
The cause of his death was mysterious and, in the language of the medical
Profession, "unascertained".
 
 
At the end of 2000, it emerged, for the first time, that there was clear
Evidence of an infection with staphylococcus aureus that had spread as far
as Harry's cerebral spinal fluid (CSF). This fluid should be sterile in a
healthy child, protected from harmful substances in the blood by the blood
brain barrier. The evidence of this infection had been known to the
Prosecution pathologist, Dr Williams, since February 1998. He had kept the
Results secret from Sally Clark and her advisers.
 
 
This is a clear case of non-disclosure by the prosecution. This non
Disclosure has caused a serious injustice. The microbiological
Test results on Harry Clark demonstrate that, in all likelihood, he died
Suddenly, in reaction to the staphylococcus aureus bacteria with which his
Stomach, lungs and CSF were riddled.
 
 
It requires no degree of expertise to realise that the test results should
Have been revealed by Dr Williams and not kept secret. It is obvious that,
if the results been made known at trial, Sally Clark would not have been
convicted of murdering Harry or his dead brother, Christopher.
 
 
It is a matter of regret that the prosecution has failed to accept that
There has been any material non-disclosure in this case. Instead an attempt
Has been made to minimise the importance of the microbiological test
Results. This has wholly failed. It is plain even from the statements made
by the prosecution expert witnesses, that the results were material, in the
sense described in R v. Judith Ward[1], in that they might arguably have
assisted the defence at trial.
 
 
Each of the prosecution experts has conceded that it is possible that Harry
died of acute staphylococcal infection. The area of disagreement between
the prosecution and defence experts is the degree of likelihood to be
attached to that possibility.
 
 
Dr Keeling's conclusion is; "The concept of an infectious cause of death
was not considered by any of the experts at the original trial. Now that
the concept of infection has been introduced it is important to appreciate
that the case for infection is being made on the basis of positive
cultures. Positive cultures alone are not sufficient evidence of the
presence of disease; they can be artefactual as the result of
contamination.[2]" (Emphasis added).
 
 
Dr Klein's opinion is that; "While there is no doubt that the sequence of
events as described [by Dr Morris of an infection and toxic reaction
causing bleeding] could occur in an infant of Harry's age it would be
exceedingly rare in an otherwise healthy individual.[3] "
 
 
Dr Wilson concludes that, in his view, the staphylococcus must have spread
in the blood stream before Harry's death. The absence of toxins does not
exclude the organism being contributory to death. The white cell response
in the CSF is probably related to a bleed but the presence of early
meningitis is not excluded. "S. aureus and/or its toxin is suspected to be
a cause of SIDS but the mechanism has not been elucidated. It can cause
petechial haemorrhages secondary to circulatory failure and toxin
release.[4]"
 
 
An attempt has also been made by the prosecution, in the alternative, to
say that the biochemical tests were so obviously flagged that they were
effectively disclosed and it is the fault of the defence that the results
were not discovered.
 
 
Finally and bizarrely it is suggested that the results were known to the
defence but were discounted or disregarded because they were irrelevant.
 
 
The last two suggestions may be rapidly disposed of. In his second
affidavit, Michael Mackay has confirmed that none of the defence lawyers
were made aware of the results[5]. This mirrors the position of the CPS
which asserts that none of the prosecution lawyers knew of the results[6].
 
 
The assertion by the CPS is accepted, subject to the caveat that any
prosecution lawyer who inspected file 89 at court (in which the results
were probably stored[7]) may have become aware of the results and should
then have disclosed them.
 
 
The prosecution skeleton disingenuously suggests that the test results
"were always available for inspection"[8]. This is not true. The results
may, as it transpires, have been available for inspection by the
prosecution in police file 89. However that was not a file that was ever
listed in the prosecution list of used and unused material. It was not
"available" to be inspected by the defence lawyers in any meaningful sense
of the word.
 
 
The prosecution also suggest there was disclosure because the fact of
testing was revealed, even if the results were not[9]. This suggestion is
wrong. Disclosure is not meant to be a game where the defence guess what
may be relevant with the benefit of hints dropped by the prosecution.
Unless and until the existence of positive microbiological results are made
known to the defence and copies of those results are supplied or inspection
invited, they cannot be said to have been disclosed.
 
 
The prosecution argument appears to have overlooked the fact that  the
professional and legal obligation to effect disclosure by providing copies
or inviting inspection has been clear for more than 20 years. The old
Attorney General's Guidelines[10] required disclosure to be effected by
provision of a copy, either by post, by hand, or via the police. If the
unused material exceeded about 50 pages or was unsuitable for copying, the
defence solicitor had to be given an opportunity to inspect it at a
convenient police station or, alternatively, at the prosecuting solicitor's
office. The House of Lords has held (in overturning the rule in Bryant and
Dixon)[11] that the common law requires the physical disclosure of police
witness statements by the provision of a copy. The Criminal Procedure and
Investigations Act 1998 (the CPIA) requires disclosure to be effected by
copying the information to the defendant or, if that is not practicable or
desirable, allowing the defendant to inspect it[12]. The decision in R. v.
X Justices ex parte J[13] has made it clear that there is in all criminal
cases a strong presumption in favour of the provision to the defence in
good time of copies of all copiable exhibits. It is for the prosecution to
displace that presumption. No factors justifying the displacement of that
presumption have been identified.
 
 
So far as the defence medical experts are concerned, all bar Professor
Emery (who died before the results were disclosed) have been contacted.
Each has confirmed that results were not disclosed by Dr Williams or seen
by them in the course of the case.
 
 
Professor Berry has said in terms he was never told about the results.
Indeed he seems to have been misled into believing that there was a
negative result in relation to the microbiology tests performed on Harry.
In his report dated 3.9.99, he stated that neither Harry nor Christopher
"showed any symptoms in life, nor was the mode of their death compatible
with infection. All tests for infection were negative with the exception of
the unremarkable finding of Staph. aureus in the respiratory tract of
Christopher."
 
 
Contrary to the suggestion by the prosecution that his opinion would have
been unaffected by knowledge of the results[14], Professor Berry has made
it clear that the results were "very unusual" and would have had a
significant impact on his opinion as to the cause of Harry's death[15].
 
 
Dr Rushton is equally confident that he was not made aware of the results
at the time of the trial. Had he been he; "would certainly have
investigated the significance of the isolation of the staphylococcus by
consulting my microbiological colleagues". He has concluded on the basis of
the reports now available from the defence micro biologists that the death
of Harry was due to staphylococcal infection[16].
 
 
Professor Luthert has also confirmed that he was not aware of the results.
He described the situation on non disclosure to Mike Mackey as "blood
chilling"[17]. He has also stated that he would have no difficulty in
reconciling the episcleral haemorrhages at the back of Harry Clark's eyes
with death arising from septicaemia.
 
 
Professor Whitwell has confirmed that she was not told of the results[18].
She understood Dr Williams assertion to the effect that there was no
evidence of disease to be a confirmation that the microbiological results
were negative.
 
 
Each of  these experts has also confirmed that they relied upon the
prosecution doctors to disclose all relevant results. This is obviously the
proper approach, both as a matter of law and as a matter of common sense.
The only contrary suggestion comes from Dr Keeling who herself failed to
seek the results. She excuses that omission by reference to her late
involvement[19]. This is not an issue that needs to be resolved for the
reasons set out in the Defence Note of November 2002. If this is not a case
of prosecution non disclosure, it is a fresh evidence case in which
relevant and credible fresh evidence is now available.
 
 
Professor David (the court appointed expert who gave evidence for the
defence with the leave of the family court judge) has been contacted by
prosecution counsel. Following that contact prosecuting counsel has
suggested that the results may have been disclosed to Professor David
because "it is still not known for sure whether the microbiology results
were in fact in the papers supplied to Professor David[20]." Given
Professor David's response in his letter dated 6th December 2002[21] this
seems a far fetched basis on which to claim  the tests results were
disclosed.
 
 
Professor David has been explicitly dismissive of the prosecution
suggestion that the results may have been disclosed to him, but ignored,
because he regarded them as irrelevant. His letter states:
 
 
  "What is so extraordinary is that these results were obviously of
 special interest to the pathology department to the extent that the
 samples were actually sent away to the headquarters of the public
 health laboratory service for further testing and yet, despite this
 step being taken, none of the results were disclosed. The PHLS in
 Colindale is the national reference laboratory for microbiology and I
 am at a loss to understand how all these results and laboratory data
 did not come to be passed into the care proceedings papers. There is no
 doubt that had these results been available, I would have referred to
 them in my report and I would have investigated their possible
 significance further not only in relation to the death of Harry but
 also the death of Christopher."
 
 
 
 Non disclosure
 
 
 
 
 
 Unfortunately this case demonstrates that the lessons that should have
been learned, as a result of the decision of the Court of Appeal in
Ward[22], have not been. The duties of the prosecution and of the forensic
experts instructed by the Crown were spelt out in clear and uncompromising
terms in Ward. The scope of that duty has not been affected by the coming
into force of the CPIA since the CPIA does not affect the common law duty
of disclosure of expert witnesses, see Archbold 10-68.
 
 
The Court in Ward dealt with the critical importance of ensuring that there
is a proper understanding of the nature and scope of the prosecution's duty
of disclosure in relation to expert scientific witnesses. The prosecution
barrister in that case had suggested that the problem was solved by the
Crown Court (Advance Notice of Expert Evidence) Rules 1987 that enable the
legal representatives of a defendant in a Crown Court criminal case to
require the prosecution by notice in writing to provide in respect of
scientific evidence a copy of (or an opportunity to inspect) "the record of
any observation, test, calculation or other procedure on which (any)
finding or opinion is based." The Court observed: "The new rules are
helpful. But it is a misconception to regard them as exhaustive: they do
not in any way supplant or detract from the prosecution's general duty of
disclosure in respect of scientific evidence. That duty exists irrespective
of any request by the defence. It is also not limited to documentation on
which the opinion or findings of an expert is based. It extends to anything
which may arguably assist the defence. It is therefore wider in scope than
the rule. Moreover, it is a positive duty, which in the context of
scientific evidence obliges the prosecution to make full and proper
enquiries from forensic scientists in order to ascertain whether there is
discoverable material. Given the undoubted inequality as between
prosecution and defence in access to forensic scientists, we regard it as
of paramount importance that the common law duty of disclosure, as we have
explained it, should be appreciated by those who prosecute and defend in
criminal cases. And, if difficulties arise in a particular case, the court
must be the final judge.[23]"
 
 
Even for a layman it should have been readily apparent that the
microbiology tests results might raise two or more medical issues in
connection with the death of Harry Clark. The first obvious issue was
whether the results indicated staphylococcus aureus infection. The second
issue was, assuming that there was an infection, what effect might that
have had on Harry's condition.
 
 
In Keane[24] the Lord Chief Justice made it clear that the documents that
must be disclosed as 'material' are those that can be seen; "on a sensible
appraisal by the prosecution: (1) to be relevant or possibly relevant to an
issue in the case; (2) to raise or possibly raise a new issue whose
existence is not apparent from the evidence the prosecution proposes to
use; (3) to hold out a real (as opposed to fanciful) prospect of providing
a lead on evidence which goes to (1) or (2).[25]"
 
 
Any qualified medical practitioner or prosecutor who was shown the
microbiology results ought to have appreciated that they might possibly
raise issues in the case of Sally Clark, whose existence would not be
apparent from the evidence the prosecution proposed to use.
 
 
 Good faith?
 
 
It is submitted that the non disclosure must have been deliberate, since it
is to be assumed that the prosecution asked appropriate questions to
ascertain whether there was discoverable material in Harry's case.
Questions such as: "Are there any test results relating to Harry Clark that
have not already been disclosed?" must have been posed. The prosecution
must have been told, wrongly, that there were not.
 
 
This appears to be the explanation for the assurance given by the solicitor
to the Police Authority (following discussions with the CPS and DI
Gardiner) in April 1999 that there were no further autopsy reports other
than those already disclosed[26].
 
 
It is appears that responsibility for the deliberate  non disclosure lies
with Dr Williams. He was the sole named recipient of Dr Wills' reports. He
is most likely to have provided the false or misleading information that
the CPS and Police Authority solicitor relied upon.
 
 
Dr Williams' explanation for his failure to disclose the reports is wholly
unsatisfactory. His claim to the meeting of experts that there was no
evidence of infection in Harry's case[27] was, on its face, untrue. His
present position is equally incredible[28].
 
 
On one view the question of Dr Williams' credibility may be something of a
side issue for the reasons identified in the Defence Note of November 2002.
If the Court concludes that the microbiology results were not disclosed and
that the expert opinions now obtained, commenting on the relevance of the
results, amount to credible fresh evidence going to a relevant issue in the
trial, then the appeal should be allowed.
 
 
However it is submitted that the fact of a deliberate non disclosure will
impact on Dr Williams' credibility, competence and claimed impartiality.
This is of significance since the majority of the critical points in the
prosecution case depend upon disputed and inadequately documented
'findings' by Dr Williams.
 
 
Thus the case on Christopher in relation to the 'nick' in the frenulum and
the presence of abrasions or bruises depends entirely on Dr Williams'
evidence. Without that evidence, the only relevant medical evidence
relating to Christopher that was properly recorded and capable of being
independently investigated were the slides of Christopher's lungs showing
bleeding and haemosiderin and the test results relating to Christopher's
blood chemistry. No expert has suggested that the slides of the lungs are
capable of establishing a case of murder. At its highest, the presence of
bleeding merely requires close attention[29]. In the absence of any other
material it is not does not establish the cause of death.
 
 
Dr Williams' credibility is also of acute significance in Harry's case.
Much turns on Dr Williams' denial of the allegation that many of his
findings were artefactual, caused by his faulty post mortem technique. For
example, in the original police investigation, great significance was
attached to his finding of haemorrhages in the eye. In the course of
discussions between the experts it became apparent that Dr Williams could
not tell the difference between the choroid and the retina. In the event,
by the time of trial it was accepted that there were no relevant retinal
haemorrhages. However, both at trial and on appeal, attention was given to
the 'finding' by Dr Williams of scleral haemorrhages. The defence case is
that they are artefactual. Dr Williams' competence and credibility is
therefore directly in issue on this point.
 
 
Similar issues arise in relation to Dr Williams 'finding' of bleeding and
swelling in connection with Harry's spinal cord. The claimed swelling was
not detectable in the sections taken by Dr Williams. The bleeding was
likely to be post mortem in origin, in the view of the defence experts.
 
 
The suggestions that there was a dislocation between the cartilage and the
bone of Harry's right second rib and a callus formation on his rib are
similarly dependent on the reliability of Dr Williams' observation. There
was no evidence of fracture on the X ray and no adequate attempt was made
to document the 'finding', either photographically or histologically. The
existence of a fracture or dislocation is also quite inconsistent with
Harry's observed well being at all times prior to his death.
 
 
Dr Williams' claim that the biochemistry results were irrelevant does not
stand up to scrutiny. The detailed forensic attention that has been paid to
the results for the purposes of this appeal underlines the fact that it is
highly unlikely that a skilled and conscientious pathologist would have
ignored the results and treated them as unworthy of mention. For this
reason alone, the defence does not accept Dr Williams' explanation for not
referring to the results in his reports, in his discussion with defence
experts and in his evidence at trial.
 
 
Prof Berry describes the results as "very unusual"[30]. Dr Morris describes
them "highly significant[31]". Dr Walters says they are "most unusual"[32]
and adds that to find staphylococcus aureus as a contaminant with the
presence of polymorphs in two sites would be "remarkable"[33]. Prof Fleming
confirms this. Staphylococcus aureus "is not a common organism to be
isolated from multiple deep sites at post mortem and is very rarely
isolated from the CSF"[34]. Even Dr Wills suggested in his original letter
to Dr Williams that: "It is somewhat unusual to find a contaminating
organism so widely spread and it may be that there was a transient or
terminal bacteraemia [The presence of viable bacteria circulating in the
bloodstream]."[35].
 
 
For the prosecution, Dr Keeling accepts that "CESDI[36] study findings (no
SA cultured from CSF) indicate that it is an unusual occurrence and its
significance should be considered most carefully. Sonnabend et al 1985
accept a pure culture of an organism in the CSF is evidence of
pathogenicity [the ability of a parasite to inflict damage on the
host]."[37]
 
 
The standard protocol for pathologists in the investigation of sudden
unexpected deaths[38] requires the "bacteriological examination of bloods,
cerebrospinal fluid and lung to rule out septicaemia, meningitis and
bacterial lung infection respectively". The standard work on the Principle
and Practice of Infectious Diseases[39] emphasises the role played in the
diagnosis of bacterial meningitis by a CSF examination.
 
 
For Dr Williams to dismiss the reported finding of staphylococcus aureus in
the cerebrospinal fluid (CSF) coupled with the presence of white blood
cells, polymorphs, lowered glucose and a raised protein level without any
discussion or disclosure is extraordinary.
 
 
The failure by Dr Williams to refer to the test results is also a clear
departure from best practice. There is evidence that, in the context of a
police investigation or a coroner's inquiry, a pathologist should record
the outcome of all results, whether positive or negative, in his
report[40]. In the absence of such action by the pathologist there appears
to be no mechanism for informing the authorities, such as the police, the
coroner, and the CPS of the results[41]. As Dr Walters observed "an autopsy
report that does not include the results of supplementary tests is an
incomplete record of the examination, capable of misleading anyone who
consults it in the future."[42]
 
 
Dr Keeling, for the prosecution, agrees with this. "Reports of all
investigations done outwith the pathology department are reported in full
including the accession number to facilitate any discussions at a later
date.[43]"
 
 
The best practice is in fact exemplified in Dr Williams' own report to the
coroner where he reports his negative findings. Features that were said by
Dr Williams to be irrelevant on analysis (such as a mark on Harry's cheek),
were identified and carefully explained in his report.
 
 
Furthermore, even if Dr Williams may claim that he was entitled to regard
some of the results obtained as contamination; it is plain that some of the
results were not. The transient bacteraemia suggested by Dr Wills and the
identical phage typing suggest that there was staphylococcus aureus in
Harry's airways. This finding should have been reported, just as it was in
the case of Christopher, even if it is then dismissed as being
unexceptional.
 
 
If, as Professor Green claims[44], Dr Williams told him about the results
in Harry's case (although Dr Williams does not claim to have done so), that
can only serve to confirm the proposition that the results should have been
disclosed in order that they could be taken into account by others. There
is no excuse for Dr Williams not providing the same information to
Professor Emery and Dr Rushton when they performed the second post mortem.
The only purpose in reporting the results to Professor Green can have been
because they were potentially relevant to anyone providing a second
opinion. They would have been equally relevant to Professor Emery and Dr
Rushton.
 
 
In fact Professor Green's note does not support either Dr Williams' claim
that the finding of staphylococcus was irrelevant, or Professor Green's own
memory that Harry's results were discussed.
 
 
The prosecution quotation from the note in its skeleton argument is
incomplete and misleading[45]. The note records[46]:
 
 
 "Christopher Clark was brought in dead to Macclesfield hospital shortly
 after 9.30pm. He was alone with his mother and was allegedly being
 nursed in his bouncy chair. She had breast fed him a few hours
 previously. Dr Williams was concerned that the child had various minor
 bruises and abrasions (although the post-mortem photographs are of very
 poor quality). The child also had a torn frenulum, but as resuscitation
 had been attempted, Dr Williams felt he should give the child "the
 benefit of the doubt". Staphylococcus aureus was grown from various
 swabs, and therefore although the histology showed no convincing signs
 of infection, this was written off as a cot death. .
 
 
 He [Dr Williams] had made no comment on the histology of the lungs of
 Christopher Richard Clark except to note the presence of "focal
 inflammation". Again specimens from this child grew a staphylococcus."
 
 
 
 (Underlined part quoted in prosecution skeleton argument and said to be
 a reference to Harry)
 
 
The significance of the note (if it is accurate) from the point of view of
the defence, is that in 1998 Dr Williams was prepared to ascribe
significance to the finding of staphylococcus aureus (in Christopher), a
proposition he has since been forced to ignore in his efforts to excuse his
non disclosure in the case of Harry. It will be observed that the note
provides no support for the proposition that the finding of staphylococcus
in Harry was discussed. It strongly suggests that it was not.
 
 
The note also suggests that the failure to report Harry's results was a
clear departure from Dr Williams' own practice of reporting biochemistry
results. It supports the possibility that the non disclosure was deliberate
and motivated by partisan considerations.
 
 
The partisan motives may also be evident in the fact that Dr Williams
persistently failed to correct the defence experts, all of whom proceeded
on the basis that there was no evidence of infection. For example Professor
Berry in his report dated 3.9.99 stated that neither Harry nor Christopher
"showed any symptoms in life, nor was the mode of their death compatible
with infection. All tests for infection were negative with the exception of
the unremarkable finding of Staph. aureus in the respiratory tract of
Christopher."
 
 
Even if Dr Williams did not supply this inaccurate information to Professor
Berry, he must have noticed Professor Berry's error and should have
corrected it.
 
 
The whole trial proceeded on the basis that there was no natural
explanation for non-artefactual bleeding in Harry, no evidence of natural
disease and no natural explanation for his death[47]. Defence experts were
repeatedly forced to concede that there was no evidence of infection or
other natural causes[48]. Sally Clark was driven to accept that she could
not explain how Harry died or why he might have bled. Dr Williams never
volunteered the information that there was evidence of infection (even if
he personally did not believe it).
 
 
When the jury asked "Are there blood tests results for Harry?" Dr Williams
gave a deliberately misleading answer. The degree of deliberation involved
is confirmed by the fact that it is now clear from  the police
investigation, carried out in 2002, that Dr Williams must have consulted
the files that contained toxicology, virology and microbiology[49] results
for Harry before answering the question.
 
 
Robin Spencer QC has devoted 16 pages of his skeleton argument[50] to an
attempt to excuse and explain what was, on any view, an incomplete answer
given by Dr Williams.
 
 "Q Can I turn to the blood sampling for Harry? Have you been able
 to make enquiries and check the records in respect of Harry?
 
 A We've looked at the records as far back as we can. .
 
 Q Was a blood sample taken from Harry at post mortem when you carried
 the post mortem out?
 
 A Yes, a sample is always taken at post mortem.
 
 Q Do you know what was done with that?
 
 A That was submitted for toxicological examination and some of it would
 have been sent for viral studies."
 
 
Whilst the explanation fashioned by Mr Spencer (in the absence of evidence
tested under cross examination from Dr Williams) might just be possible if,
as he suggests, the question was misunderstood by Dr Williams, it is not a
likely explanation. It is extraordinary that Dr Williams should choose to
refer only to toxicology and viral studies when he knew that there has also
been microbiological testing. All are equally remote from the topic of
blood chemistry that Mr Spencer suggests lay behind the jury question and
Dr Williams' answer.
 
 
 
 The non disclosure was material/Fresh evidence
 
 
As the Court will appreciate from the Defence Note of November 2002, it is
submitted that the success of this appeal is not dependent on the
prosecution non disclosure. The appeal could be allowed on the grounds of
fresh evidence alone. The evidence of the defence experts is plainly
capable of belief. It would have been admissible at trial. There is a
cogent explanation for the failure to call it at trial, namely that the
defence did not know that there had been a positive result obtained from
the microbiological testing.
 
 
The only relevant issue in connection with the fresh evidence is whether
the evidence may afford a ground for allowing the appeal. As the House of
Lords indicated in Pendleton[51], the Court is entitled to form a view on
whether the evidence give rise to a reasonable doubts about the verdict.
The Court should however recognise it is at a disadvantage in seeking to
relate that evidence to the rest of the evidence which the jury heard. "For
these reasons it will usually be wise for the Court of Appeal, in a case of
any difficulty, to test their own provisional view by asking whether the
evidence, if given at the trial, might  reasonably have affected the
decision of the trial jury to convict. If it might, the conviction must be
thought to be unsafe."
 
 
There are three questions that may have to be answered in assessing
materiality or the safety of the conviction. The first question is whether
the results may have been caused by infection rather than contamination?
The second question is what may be the effect of staphylococcal infection?
The third question is the issue canvassed above, namely the impact  on Dr
Williams' credibility and competence of the fact of deliberate non
disclosure.
 
 
 1. Contamination?
 
 
There is no plausible basis for assuming contamination. The finding of
staphylococcus aureus in the CSF is highly unusual[52]. In studies[53] of
hundreds of sudden infant deaths, there has been only 1 case in which the
CSF was found to be infected with staphylococcus aureus and 7 where
staphylococcus aureus was found in the blood. Since it is common and
unremarkable for such infants to have staphylococcus aureus in their
airways[54], it is astonishing if the mechanism of contamination favoured
by Dr Keeling is possible or even likely, that staphylococcus aureus has
not been found more widely in the blood and CSF of dead infants.
 
 
In addition, the absence of staphylococcus aureus in the blood suggests
that any contamination did not occur during resuscitation or after death.
The only physical medium in which staphylococcus aureus in the airways,
lungs or stomach could be transferred so as to contaminate the CSF is the
blood[55]. The absence of staphylococcus aureus in the post mortem blood
sample suggests that contamination did not happen at the point of death or
resuscitation since there would be no mechanism for the staphylococcus
aureus to disappear from the blood and yet remain in the CSF.
 
 
The absence of staphylococcus aureus in the blood sample taken by A&E has
no significance either way since the sample may not have been large
enough[56] In any event a negative culture does not exclude infection[57].
 
 
Overall the absence of staphylococcus aureus in the blood argues strongly
in favour of a infection in life that Harry's defences  may have cleared
from his blood but whose presence elsewhere had not be cleared and killed
him. This appears to be a possibility accepted by Dr Wilson for the
prosecution[58].
 
 
The fact that the finding is of a single pure organism also suggests there
is no contamination. Contamination caused by intubation or resuscitation
might be expected to spread a variety of organisms, not a single
organism[59].
 
 
The case for contamination is undermined by the levels of red blood cells
and leukocytes (white blood cells) plus polymorphs in the CSF[60]. The
presence of polymorphs can only be explained by a reaction to infection or
irritation in life[61]. This is conceded by Dr Keeling[62]. Dr Wills for
the prosecution agrees that the presence of white blood cells indicates an
inflammatory reaction.[63] Dr Wills also concedes that: "The polymorph
cells [in the CSF] are suggestive of a bacterial infection,[64]" although
he goes on to says that the response is too low for meningitis. Dr Wilson
states that "polymorphs in the CSF do suggest a reaction to inflammation
before death, as the ratio of red to white cells is not what would be
expected from a simple leak of blood into the CSF.[65]"
 
 
The attempt to explain the polymorphs and white blood cells by reference to
a prosecution theory that Harry had been shaken and had bled into his CSF
in the last 2 to 3 hours of his life does not stand up to scrutiny.
 
 
Not only is the number of red cells minute (no more than a pin head of
blood) and insufficient to cause irritation, but the reaction to the
presence of that blood in the CSF would account for only 1 of the 80
leukocytes plus polymorphs observed[66]. Dr Wills has conceded this, albeit
at a late stage[67]. The only available and plausible explanation for the
remaining 79 leukocytes is the presence of the staphylococcus aureus.
 
 
The blood irritation theory also provides no explanation for the presence
of staphylococcus aureus and polymorphs in the stomach[68]. No one has
suggested bleeding at that site or the presence of any other irritant[69].
Dr Wilson considers that this also points towards an infection during
life[70]. His conclusion is "that it is not possible to exclude meningitis
in addition to bleeding into the CSF".
 
 
The presence of staphylococcus aureus, in life, for several hours is also
supported by the presence of polymorphs[71] coupled with the raised protein
levels, the reduced glucose levels[72] and the colour of the CSF.
 
 
At a late stage the prosecution experts appear to have abandoned the
attempt to make the microbiological facts fit the theory advanced by Mr
Spencer that "Harry had been subjected to some trauma two to three hours
prior to death, by shaking or otherwise .[73]."
 
 
It is now suggested by the prosecution, in yet another attempt to make the
facts fit a murder charge, that the microbiological results are the result
of much older bleeding. This is unacceptable for a number of reasons.
 
 
First it is noteworthy that the shift of ground seems to be justified by
reference to the disputed finding by Dr Williams of a rib fracture and
haemosiderin around Harry's cord. Second the suggested early bleeding makes
no sense. It would take a considerable and significant bleed to raise the
protein to 3.24gms/litre. This must have occurred at least 10 days prior to
death as it would take at least that time to clear the red cells (only 230
per microlitre remained at the time of death). Any such bleed would have
caused Harry to be extremely ill. This would have been obvious to all
concerned and he would have required admission to hospital and intensive
care.
 
 
In fact at all times up to 4 hours prior to his death Harry was seen by a
series of independent witnesses to be healthy and well. He exhibited no
signs of distress. He was handled daily by health care workers who noticed
no physical discomfort and saw no signs of injury. At that time Harry's CSF
protein must have been normal and he could not have been suffering from
meningitis. He cannot have suffered physical trauma.
 
 
The elevated CSF protein must therefore be due to events in  the last four
hours of his life. If it is not a consequence of a recent bleed, the only
plausible explanation is cytokine release due to staphylococcal infection.
 
 
The suggestion that the turbidity of the CSF and its xanthachromatic
(yellow) colour indicate bleeding has also been demonstrably destroyed[74].
 
 
So far as turbidity is concerned, the growth of staphylococcus aureus post
mortem would be limited for the reasons explained by Professor
Blackwell[75]. The Avon study confirms this. "There is no correlation
between the length of time taken before post mortem and the finding of
bacterial samples." The CESDI study also confirmed this. "There was no
clear relationship between mixed growth in blood samples and increasing
post-mortem intervals." The contrary view expressed by Dr Klein is based on
little more than guess work[76].
 
 
So far as colouration is concerned, the prosecution case depends upon the
proposition that bilirubin may appear within 4 hours of a bleed into the
CSF. In fact as Dr Walters has pointed out by reference to the standard
work on cerebrospinal fluid[77], bilirubin does not usually appear until 10
hours or more after the episode of bleeding. In the first 4 hours after a
bleed, the CSF would be coloured pink by the process of lysis.
 
 
Furthermore the presence of bilirubin would initially appear in combination
with haemoglobin and give an orange colouration. Dr Walters' calculations
have proved that it is  impossible to ascribe the colour (if correctly
observed) of Harry's CSF to the presence of bilirubin related to
bleeding[78]. It may be related to the increase in the protein level[79].
It may more probably be related to the length of time that elapsed before
the post mortem was performed[80].
 
 
Any prosecution proposition that propounds that Harry must have bled into
his CSF as the result of trauma inflicted by Sally Clark is also
inconsistent with two other observations. First it is impossible to
postulate a form of trauma that would cause bleeding at the site identified
by Dr Williams without causing damage to other areas of the spine. Second
there is no other evidence of shaking such as would be present in a case of
shaken baby syndrome.
 
 
If bleeding was present in the CSF and occurred in life it is more likely
to be related to haemorrhage caused by staphylococcus aureus toxins. It
appears most likely however that the bleeding was post mortem and caused by
contamination. This proposition is supported by the absence of any signs of
haemoglobin discolouration.
 
 
 2. The effect of staphylococcal infection?
 
 
The second question which the court must address in connection with the
issue of materiality or safety is the effect of a staphylococcus aureus
infection.
 
 
It is submitted that much of what follows should be relatively
uncontroversial. Staphylococcus aureus toxins can cause bleeding[81]. Thus,
even if it not the cause of death, its presence is relevant to
understanding the possible causes of bleeding found in Harry. The relevant
areas of bleeding were scleral haemorrhages, petechial haemorrhages and
claimed bleeding connected with the spine.
 
 
Staphylococcus aureus toxins may also damage cells[82]. This is of
importance in connection with the changes to the cells in the temporal
lobe. Dr Keeling seems to accept this, albeit as a theoretical
possibility[83].
 
 
Thus the existence of staphylococcus aureus infection may have helped
explain all the post-mortem findings which caused concern in Harry's
case[84] (other than the disputed evidence given by Dr Williams relating to
the ribs and the finding of haemosiderosis). This is the case even if
staphylococcus aureus did not cause death.
 
 
It is in fact likely that staphylococcus aureus caused Harry's death. It is
not possible to be certain of the mechanism[85]. All that can be said with
confidence is that bacterial toxins can kill without leaving any
histological signs[86]. Toxic shock and septic shock[87] are both possible
causes of death. Staphylococcus aureus commonly causes septicaemia without
any primary focus of infection[88].
 
 
It is accepted by all concerned that staphylococcus aureus in the CSF can
cause meningitis, albeit infrequently[89]. Dr Walters' estimate from the
published data is that staphylococcus aureus meningitis constitutes 2-10%
of all cases of bacterial meningitis.
 
 
If the polymorph reaction was not caused by red blood cells in the CSF then
the only possible source for the polymorphs and the raised protein is from
inflammation of the meninges. Thus, whether or not there is histological
evidence of swelling in the meninges, there must be infection in them to
produce polymorphs and raise the protein level[90].
 
 
The fact that the leukocyte level is above the normal limit but lower than
that seen in bacterial meningitis[91] is consistent with the known delay in
the rise of white cells in the CSF after the onset of rapidly progressive
meningitis[92]. It is also consistent with the data  that shows that
cerebrospinal fluid in children shows less inflammation than for non-
infants[93]. Indeed children with culture proven meningitis may sometimes
have normal white cell count[94].
 
 
The primary reason for the rejection of the diagnosis of staphylococcus
aureus meningitis is the absence of histological change[95]. However it
appears to be well recognised that bacterial toxins can produces death or
life threatening events without any histological change, even  in
adults[96].
 
 
The likelihood of death is enhanced when, as was the case with Harry, the
presence of antibodies are at their lowest levels[97]. The effect of the
dose of calpol given to Harry after he was immunised may also have a role
to play in suppressing inflammatory responses[98].
 
 
The presence of staphylococcus aureus in cases has uncontroversially been
accepted as being related to sudden infant death even in cases where there
is no histological change[99].
 
 
Even the prosecution accept that death can occur very rapidly in very young
children[100]. What they have failed to accept however is the logical
consequence of that concession, namely that in the case of rapid death
there is unlikely to be any specific histological change.
 
 
CSF sampling is likely to be the most sensitive method of testing for the
signs of early infection and meningitis[101]. It is a matter of basic
physiology that polymorphs will be present before there is any histological
change or visible pus on the surface of the brain[102]. Dr Wilson appears
to accept this proposition on behalf of the prosecution. "I agree that the
central nervous system findings would be compatible with an injury leading
to bleeding and inflammation of the meninges before death. I agree that an
illness lasting several days before death would have resulted in more
striking findings at post mortem, particularly abcesses and purulent
meningitis.[103]" The point is made more forcefully by Dr Wilson in the
following passage: "In meningitis the usual progression would be bacteria
alone, bacteria plus lymphocytes and then bacteria plus polymorphs over a
period of 3 - 5 hours.[104]"
 
 
Once there is infection, a toxic reaction may cause death at any time. The
likelihood of death is considerably increased if there is no known focus of
infection[105].
 
 
Although the prosecution originally suggested that the absence of any
finding of the toxins TSST and SEA-SED was conclusive to show that there
had been no toxic shock[106] or other toxic effect, it is now appears to be
accepted[107] that staphylococcus aureus produces a number of toxins other
than the toxins tested for[108], including staphylococcal enterotoxin E
(SEE)[109] and F[110], as well as alpha, beta, gamma and delta toxins that
damage cell membranes[111]. The bacterial cell wall can produce peptido
glycan toxin[112]. There are also other components of staphylococcus aureus
that can produce strong inflammatory responses[113].
 
 
The argument is not illuminated by the statement of Dr Klein which contains
the unsupported assertion that there can be no meningitis without
histological change. He is not a pathologist and therefore would never have
cause to examine or understand sudden deaths where there is no sign of
histological change. His assertion that there must be symptoms and
histological change is understandable given that his practice is solely
concerned with living but obviously sick children.
 
 
Dr Klein's assertion cannot stand in the face of documented examples of
children and adults who have died as a result of toxins without any
histological changes being present[114].
 
 
Dr Klein's evidence is also undermined by the fact that staphylococcus
aureus is now being identified as a possible cause of SIDS. If this
identification is correct, it also supports the proposition that death may
be caused by staphylococcus aureus without any associated histological
change.
 
 
The proposed connection between staphylococcus aureus and SIDS also answers
Dr Keeling's point that there cannot be a disease which either colonises
(not producing disease) or kills rapidly. If the possibility (which she has
acknowledged in a paper of which she is a co-author)[115] that "pyrogenic
toxins of Staphylococcus aureus are involved in .sudden infant death"
exists, then staphylococcus aureus infection may be just such a disease.
 
 
The rate of infection with staphylococcus aureus fits the mathematical
model for SIDS. It occurs with greater frequency in boys, in the winter
months, when babies are put to sleep on their fronts or on old mattresses,
all of which were otherwise inexplicable epidemiological features of the
incidence of SIDS[116]. On investigation, staphylococcus aureus toxins have
been detected in the tissues of more than 50% of SIDS victims (as compared
to a much lower level in infants who died of other causes)[117].
 
 
 3. The impact on Dr Williams?
 
 
It is not proposed to repeat the matters set out above, under the heading
'Good Faith'. It is clear that the fact of non disclosure raises questions
about Dr Williams' credibility and competence. The presence of
staphylococcus aureus in a pure culture, leukocytes, polymorphs and a
raised protein level ought to have suggested to Dr Williams at least the
possibility of bacterial meningitis, even if it may not have caused
death[118]. Dr Klein agrees that the CSF leukocytes is consistent with
meningitis. Dr Wilson states: "It is not possible to exclude
meningitis.[119]"
 
 
On any view it was a possibility that ought to have been frankly disclosed
and debated. There are only two possibilities. Either Dr Williams is so
incompetent or negligent that he failed to recognise early signs of
bacterial meningitis or he was deliberately unwilling to acknowledge or
admit that possibility, having set a murder investigation in train.
 
 
 73 million to 1
 
 
Despite the prosecution's claim that the 1 in 73 million statistic was and
is irrelevant, this was not the stance taken at trial. The prosecution in
closing and the trial judge in summing up both emphasised the statistic.
The jury must have believed that it was relevant.
 
 
If it is now conceded it was irrelevant and the Court of Appeal has
determined that the judges' direction on the topic was inadequate to avert
the danger of the 'prosecutor's fallacy'[120], it is necessary to evaluate
the impact of the wrongly admitted evidence and the mistaken summing up on
the juries verdict.
 
 
In addition to this, the Court must give weight to the uncontested fresh
evidence that shows the first Court of Appeal (and the parties) were misled
into thinking that, whatever the true statistical figure might be, a cot
death would still be a rare or unusual event. This fact was highly material
to the conclusion of the Court of Appeal that the convictions were
safe[121].
 
 
However as Professor Hill has now demonstrated, in any family unlucky
enough to suffer a first SIDS, a second SIDS death is not a rare event at
all. Odds of 1 in 260 have been estimated[122] or 1 in 100[123].
 
 
The figure of 73 million to 1 or any evidence of rarity would have had an
effect on the jury. It is now accepted that the evidence was inadmissible.
It should therefore never have been led. If true, the evidence was
profoundly damaging. Further the damage was exacerbated by the fact that
the jury were never adequately warned about the dangers of believing that
the odds of innocence were 73 million to 1.
 
 
The facts must now be reconsidered in the light of the substantially
diminished certainty that can be attached to the prosecution medical case.
The  diminished medical evidence also has a knock on effect on the
"circumstantial evidence" relied upon. It would be quite wrong, for
example, to continue to place weight on the absence of explanations from
Sally Clark for the bleeding found in Harry, given the finding of
staphylococcus.
 
 
Once the evidence is reassessed in this new light it is not possible to
conclude that the giving of the flawed statistic and the misdirection did
not have any substantial effect upon the jury.
 
 
 The approach of the Prosecution
 
 
The prosecution seek to obscure the real injustice caused by their non
disclosure and misleading use of statistics by seeking to argue that
nothing has changed. This is unrealistic and wrong. The errors that have
permeated this case have a widespread ripple effect. No one aspect can be
considered and dismissed in isolation. For example the non disclosure will
have affected all the evidence in relation to Harry's case. Sally Clark may
have been regarded as less credible by the jury because she had no idea
what may have killed him. The defence experts may have suffered a similar
fate.
 
 
The prosecution  place considerable weight on the defence concessions
extracted in cross examination on the assumption that "the medical
findings were genuine"[124]. The concessions made by the defence experts
would, in all probability, not have been made if Dr Williams' part and
purpose in the non disclosure had been appreciated by those involved.
 
 
Similarly little weight can be given to the prosecution list of
similarities[125] if the fresh evidence is or may be credible. The critical
similarities of "previous abuse" and "deliberate injury" or "recent abuse"
can only be safely relied upon if the Court is satisfied that Dr Williams
is competent and honest and that the bleeding observed cannot have been
caused by staphylococcus aureus.
 
 
In addition the prosecution give considerable currency to the 'hallmark'
features of infant killing identified by Professor Meadow. It is not
accepted that such evidence is admissible. The evidence does not qualify as
expert evidence. The subject matter of the opinion is not such as to
require special assistance to be given to the jury. It consist of no more
than a list of commonplace features that a jury would not need help
with[126]. A jury does not need Professor Meadow to tell them, for example,
that inconsistent accounts from parents or the previous abuse of a child or
the child being well immediately before it died may all be relevant in
deciding whether a child  has been murdered by a parent.
 
 
Even the subject falls within the class of subjects upon which expert
testimony may be permitted, there is no sufficiently organised body of
knowledge or research that ensures that any opinion expressed  on the
subject is reliable. The body of knowledge relied upon by Professor Meadow
was no more than his own experience over 20 years. However almost none of
the underlying materials or data upon which Professor Meadow's opinion in
based is now available. Access to the material was requested before
trial[127]. The request was denied. Professor Meadow claimed to have
destroyed the majority of the information on which his published results
were based[128]. It is therefore impossible to examine the claimed
scientific basis for his opinions.
 
 
The destruction of the material would also clearly render the admission of
the opinion unfair, even if it was strictly admissible.
 
 
 Retrial
 
 
There is now clear and compelling evidence in favour of proposition that
Harry died a natural death. There are a series of reports (above and beyond
the evidence to be called on appeal) that demonstrate that there is a
substantial and highly respectable body of national and international
medical opinion that considers Harry died as a result of overwhelming
staphylococcus aureus infection[129].
 
 
The alternative case on shaking or smothering is substantially weakened by
the existence of an explanation for the acknowledged bleeding and petechiae
observed at post mortem. The case on shaking is further weakened by the
complete absence of any of the classic signs of shaken baby syndrome (such
as axonal damage) and the inability of any expert to describe the mechanics
of the trauma suggested by the prosecution.
 
 
The case against Christopher is equally diminished. His cause of the death
has always been in doubt. Death was originally unequivocally ascribed to a
natural cause by Dr Williams. The prosecution experts, save for Williams,
have gone no further than saying the cause is still unascertained[130]. The
defence have similarly concluded that the cause is unascertained and the
further experts consulted since the convictions support that view[131].
Professor David, the independent court appointed expert, has suggested that
death might have been caused by acute idiopathic pulmonary haemosiderosis.
Only Dr Williams has been willing to confidently ascribe death to
smothering.
 
 
Dr Gullino has concluded that acute idiopathic pulmonary haemosiderosis is
a reasonable possibility and has also pointed to the growing support for
Professor David's independent diagnosis of that condition. No other
diagnosis fits the findings and explains the now accepted evidence of
Stephen Clark that Christopher suffered a spontaneous nose bleed from both
nostrils whilst in his sole care in London two weeks before his death. On
the face of the totality of the medical evidence it is submitted that the
case on Christopher would not get past the close of the prosecution case.
It would certainly not end in a conviction.
 
 
The time has come to draw a line under these deaths. It requires no
imagination to appreciate that devastation that the deaths and these
proceedings have already caused in the Clark family. As lawyers it is easy
to understand the professional disgrace that has befallen Sally Clark (as
well as the vilification of her husband for standing by her). More
poignantly it has led to (name), their surviving child, reaching the age of 4
barely knowing his mother.
 
 
Sally Clark has completed 3 years of sentence of life imprisonment with a
recommended tariff of 15 years and has had to mourn the death of her
children whilst being held out to be their murderer.
 
 
The lives of the family have been laid waste by the seeming certainty of
doctors where certainty was not justified.
 
 
It is impossible to  carry out further tests to determine the various
hypotheses that have now emerged as to the cause of Harry's death. Harry
was cremated after the defence experts advised that (on the material then
know to them) all the appropriate tests had been carried. There are now
only a limited range of medical samples available.
 
 
This situation is due to the non disclosure, coupled with the failure of Dr
Williams to undertake sufficient routine dissection and histology[132]. It
cannot be right to have a murder trial where the central issue, namely what
caused the death of