Prosecution evidence: General
43. Harry was born on 29 November 1997, three weeks premature but healthy. At the time, Mr Clark was immobile with a leg in plaster and Lesley Kerrigan was employed to help with the household chores. She never saw any sign of abuse and the appellant appeared to be a loving, caring mother. Harry received regular visits from health visitors, in particular Elizabeth McDougall. The Clarks were part of the Care of Next Infant programme (CONI), which supported parents who had suffered a cot death, including providing an apnoea monitor. On 26 January 1998 the appellant telephoned Mrs McDougall to arrange for a replacement monitor [JA14] because theirs was faulty and her husband was going away the following day. Mrs McDougall brought one at 3.45 p.m. At 4.20 p.m., Harry received his immunisation at the Wilmslow Health Centre. Nurse Weiser, who described Harry as a bonny baby in good health, advised the appellant to give him Calpol if necessary. At 4.45 p.m. the appellant received her post-natal check. Dr Case described her as cheerful. He did not examine Harry.
44. At 9.27 p.m. on 26 January 1998 the appellant made a 999 call because Harry had stopped breathing. A transcript of the 10½-minute call was before the jury. The ambulance arrived at 9.36 p.m. Mr Limming and Mr Bourne, the paramedics, each described the appellant running up and down the street outside the house, barefoot, in pyjamas and very distressed. She directed them upstairs, where Mr Limming found Mr Clark with Harry, who was limp, pale and cyanosed. Mr Clark had begun a form of resuscitation and Mr Limming took over, but there was no sign of life at all. At 9.40 p.m. the ambulance left with Harry and the appellant. Mr Clark followed in a taxi. On the way, the appellant was distressed and hysterical. She mentioned that this was the second time it had happened and said that the baby had gone limp and blue in her arms. Neither of the ambulance men saw any marks or signs of injury on Harry.
45. At the hospital, Harry was taken to the resuscitation room, while the appellant was taken to the relatives' room and was later joined by her husband. Dr Gilbert, a consultant paediatrician, declared Harry dead at 10.41 p.m. and examined the surface of Harry's body. He informed the appellant and Mr Clark of the death. They told him that Harry had taken a breast feed and seemed perfectly healthy. They had recently introduced a bottle at bedtime and Mr Clark went to prepare that feed. Harry was placed in a bouncy chair on the floor while the appellant watched television in the same room. She heard nothing abnormal, but when she looked at Harry a few minutes later, she thought he looked unusual. When she picked him up, he was limp and she immediately called her husband.
46. Christine Hurst, of the Coroner's Office, realised that the Clarks had previously lost Christopher and telephoned the next morning, 27 January, to give her condolences. No contemporaneous note was made, but she said the appellant was calm and lucid. According to Mrs Hurst, the appellant said they would try for another baby and fortunately she got pregnant easily. Mrs Hurst felt it was unusual to express a wish for another child so soon. She denied that the appellant had said that she wanted to know why Harry had died in case there was any genetic problem, which might affect another child, nor did the appellant say she had had Harry as part of a healing process. Mrs Hurst briefly asked her about any family health problems and told her there would be a post mortem. On seeing the files for Christopher, Mrs Hurst was struck by the similarities between the two deaths. She immediately spoke to DI Gardner and arranged for a Home Office as opposed to a Coroner's post mortem. Mrs Hurst attended the post mortem by Dr Williams in her official capacity and noticed brown streaks on the spinal cord.
47. Elizabeth McDougall visited the appellant on 27 January, when both parents appeared completely devastated and shocked. The appellant was in deep distress. Mrs McDougall visited again on 4 February. The appellant broke down in tears. According to Mrs McDougall, she said that she was with Harry upstairs after his feed, watching television while her husband prepared supper. She looked at Harry, who seemed to be sleeping and felt the need to prod him. When she got no response, she screamed for her husband. They only used the monitor at night.
48. The appellant was arrested on 23 February 1998 on suspicion of the murder of Harry and was interviewed twice on that day, without her solicitor present. She said she was tired and voiced concern about her husband going away the next day. According to the prosecution, she described Harry in the bouncy chair with his head right down and she demonstrated the whole body, including the head and arms, as having moved forward from the waist. Dr Milroy, a police surgeon, said that it was impossible for Harry at 8 weeks old to have slumped forward over the T-shaped front support of the bouncy chair.
49. The appellant was later arrested on suspicion of the murder of Christopher and was interviewed on 9 April 1998 with her solicitor present. Her solicitor felt that in the absence of full disclosure, he could not give proper advice. She made a statement that she did not wish to add anything to what she had said about Harry and that she had not harmed Christopher. When asked specifically about Harry's position, she said she had nothing to add to what she had said before, that his head was down. In the absence of full disclosure, she was advised not to comment about any similarities between the two deaths or the three medical opinions that they were unnatural. She was interviewed again on 2 July, following disclosure of medical reports, but on her solicitor's advice she made no comment. Later that day she was charged with the two murders.
Prosecution evidence: Medical
50. Dr Williams gave evidence of his findings at Harry's post mortem on 27 January. Professor Meadow, Professor Green, Dr Keeling and Dr Christine Smith, a consultant neuropathologist, also gave evidence as to the various findings.
51. As to the eyes, Dr Williams found (1) some petechial haemorrhages, which were a feature in a lot of different mechanisms of death including asphyxia, but there was no evidence of any of those. In the absence of an explanation, they might have been related to the spinal injury, which could cause an asphyxial death; (2) haemorrhaging on the backs of the eyes, such as he had only seen in cases of death caused by over-laying or smothering.
52. At trial and following a meeting with Professor Luthert at Moorfields, Professor Green accepted that what he initially thought was intra-retinal haemorrhaging, was due to an error in the slide preparation and he was now satisfied the bleeding had occurred post mortem. Haemorrhages on the outside of the backs of the eyes might have been caused during the post mortem, but he would not have expected that appearance, which he had not seen before. Professor Meadow said that provided the two petechiae in Harry's left eyelid were certainly such petechiae, they were of significance because they provided a link with a traumatic event having occurred. Dr Keeling said they were a significant and worrying feature because they were a sign of asphyxial injury, but she was unable to say positively that the child had been smothered. Dr Keeling did not think [JA15] that the two areas of blood on the back of the eyes had been caused during post mortem.
53. As to the brain, Dr Williams made the following findings: (1) some tears, which he later accepted were not unequivocal; (2) some old blood (haemosiderin), which he agreed might properly have been attributed to birth.
54. Dr Smith said there was no evidence of natural disease or swelling in the brain, nor did she see any tears of the brain unequivocally caused before death. There was no indisputable evidence of traumatic injury, but she did find some small haemorrhages on the surface of the brain and in the grey matter inside the brain, which could have been caused by direct injury or stoppage of oxygen. She also found signs of hypoxic damage to nerve cells due to lack of oxygen before death. Such damage could be caused if the airways were obstructed and the post mortem showed no evidence of natural cardiac or respiratory disease. Although the beta APP staining process had revealed no recent damage where trauma might have been expected, from the time it would take such damage to occur, she concluded that some hours before Harry's death something had happened, which caused damage to the nerve cells in the brain, either by damage to the spine or by some other injury or obstruction of the airways. Harry had survived that episode, but Dr Smith could not rule out that the hypoxia had been a contributory factor to the subsequent death.
55. Dr Keeling also thought the hypoxic damage indicated some sort of episode causing oxygen not to get to the brain, commonly stopping breathing for any reason. The damage did not give any indication of causality, but one possible cause was trauma. She thought the hypoxic damage would have been caused closer to 2 hours rather than 24 hours previously. She found the negative beta APP staining test a surprising finding that made her more inclined to the lower limit of 2 hours for the hypoxic damage to become apparent. Whatever had caused the lack of oxygen had occurred at least two hours before death. If something else had occurred, it was another insult very close to death, which probably would not have been seen on the beta protein staining process because of insufficient time to develop.
56. As to the spine, Dr Williams found that the spinal cord was swollen and there was an excessive amount of blood, both fresh and old. He concluded that Harry had been shaken on several occasions, over several days. In cross-examination, he explained that meant on at least one occasion at least 48 hours before the final one. He could not gauge the severity or mechanism and agreed that other expected features were absent. He had seen haemorrhages in the spinal canal in shaken baby syndrome, but not so low down. Damage which appeared relatively small could nevertheless have a catastrophic effect. Dr Williams thought it unlikely the old blood was a result of birth. The fresh bleeding was an extensive haemorrhaging around the spine, which he had not seen before in a baby of this age. There must have been some sort of trauma to that part of the spine and he was adamant it had not been caused during the post mortem.
57. Dr Smith had been consulted by Professor Green about the findings relating to Harry's spinal cord. She examined slides sent by Dr Williams, but found no subdural haemorrhage in the spine. She found evidence of fresh bleeding in the epidural space and evidence of old blood, from which she concluded there had been two episodes of bleeding. She felt the fresh bleeding could not be dismissed as having been caused by the post mortem process. Bleeding would only be caused by disease or trauma and she disagreed with Professor Berry that such findings were regular in a baby of this age. She agreed this was not one of the usual findings in a shaken baby and was unable to say what mechanism had caused it. She had never regarded this case as a classic shaking case and she did not think it was a case where there had been a direct thump to the child. The bleeding in the thoracic cord ended in one of the areas where maximum movement occurred if there were excessive flexion or extension of the spine. Of itself, the epidural haemorrhaging would not have caused death and there would have had to be some damage to the cervical cord to cause death. She dismissed the possibility that the spinal bleeding could have been associated with resuscitation. She had not previously seen old bleeding in the spine of babies of this age as described in this case. There could have been a previous traumatic episode, similar to that which had caused the fresh bleeding. It could have been birth related, but she had not said that in her report, which simply said that there had been at least two episodes of bleeding. Swelling of the cord could interfere with its function without there being any obvious sign of damage. Swelling of the cord would have been caused by oedema, which was best assessed with the naked eye. Dr Williams had removed the dura and spinal cord in their entirety, but would have had an impression of swelling around it.
58. Professor Green had seen some such damage in cases of shaking, but not this particular injury. Features commonly associated with shaking, such as contusional tears, damage to the cervical cord and subdural haemorrhage, were not present here. He would not speculate as to the cause, but took the view that this was bleeding shortly before death and he was deeply concerned at the amount of blood, which started in a site associated with trauma and ended at a site associated with trauma. In cross-examination, he said that the trauma had to be regarded as a serious possibility and in re-examination, described it as a very strong probability.
59. Professor Meadow said that an injury causing the bleeding around the spine would suggest an unusual trauma and would be significant. He also said that he would have expected damage to the cervical cord if it had caused death. There was a lack of research on shaking of babies and it was no more than guesswork. He would not necessarily expect there to be signs of bruising.
60. Dr Keeling had never encountered such a degree of bleeding as shown in the photographs. In cross-examination, she said that she could not positively say that Harry's haemorrhages had been caused by trauma. In re-examination, she said that whilst there might be a similar amount of blood in a SIDS case, in the SIDS case the blood was in the tissue and not lying free, whereas Dr Williams's description and photographs [JA16] showed bleeding lying free on top of the dural sheath. She would have expected an experienced pathologist to see swelling without stripping off the dura and it would have seemed more obvious than it did in the photographs. She could think of no explanation other than trauma. The presence of blood alone in the epidural space did not of itself cause death. There was no damage to the cervical part of the spine and no evidence of traumatic damage to the brain. She could not say what had triggered the bleeding in the epidural space.
61. As to the ribs, Dr Williams found that Harry had suffered a fracture of the second right rib at the side under the armpit. In his statement, he had referred to it as a possible old fracture, but in evidence he was adamant that there was no other explanation. He had told DI Gardner that it could have been a birth injury, but that was only so that he could investigate other possibilities. In cross-examination, he said the fracture was 6-8 weeks old [JA17] and although such injuries could be caused at birth, it was unlikely because Harry had had a normal, uncomplicated delivery. The first rib had become dislocated from the cartilage near the breastbone. He had not included it in his post mortem findings because it was of unknown significance. He was sure it had not occurred during birth or the post mortem, nor had he seen such a dislocation from resuscitation attempts.
62. Professor Meadow and Dr Keeling each said that the fracture of the second rib would have been an unusual birth injury. Professor Meadow said that it would have been noticeably painful for the baby. [*] Dr Keeling said she had seen from the microscope slide the procees of remodelling (ie bone growth) confirming there had been an injury, such as a fracture. Professor Meadow and Dr Keeling each said that the dislocation of the first rib would have been an unusual resuscitation injury. Dr Keeling was surprised to find no haemorrhage at the site of dislocation and could not exclude the possibility of it being a post mortem injury.
63. In conclusion, Dr Williams's opinion was that Harry did not die a natural death, but there was no pathological evidence that he had been smothered. Having regard in particular to the findings in relation to the spine, it was his conclusion that he had been shaken to death. Professor Meadow concluded that Harry's death could not be classified as SIDS and in his opinion the baby did not die a natural death. His strength of feeling had only increased with the further information received since his statement in June 1998. Dr Smith said that without the intra-cranial haemorrhages, she was unable to specify a mechanism for death and was, therefore, unable to say this was a shaking case. In cross-examination, she said that she could not exclude some unidentified natural disease, but there were features that indicated some insult to the child. In purely pathological terms, it was an unexplained death, but there were features such as fresh and old bleeding around the cord, hypoxic damage in the brain and the small haemorrhages, that pointed to a non-natural death. She could not point to any specific mechanism, nor could she think of any natural cause. In her opinion, Harry did not die a natural death and she could not totally exclude smothering. Professor Green said that Harry's death could well not be natural. Although it was not possible to be certain, there were abnormalities, which needed explanation. As with Christopher, he felt that the most appropriate diagnosis was unascertained. Dr Keeling still held the view expressed in her report that the possibility of a non-natural death should be considered. It was her opinion this was not a SIDS death. She would give the cause of death as unascertainable.
Defence evidence: General
64. The appellant gave evidence that she and her husband decided to have another baby to ease the pain of losing Christopher. For Harry they went on the CONI programme and used a monitor. The appellant watched Harry all the time. She had no idea that he might have fractured a rib and he showed no sign of pain or discomfort. He was a more demanding baby than Christopher and she was getting tired, despite Mrs Kerrigan's help. She did not feel she needed any extra help and there were no problems with his health.
65. At about 3.45 p.m. on 26 January 1998, Harry was seen by the health visitor, who brought a replacement monitor. At 4.20 p.m., he received his inoculations and she gave him Calpol because her husband was going away to Glasgow the following day, his first trip since Christopher had died. The appellant had her post-natal check at about 5.15 p.m. In evidence, the appellant said that her husband got home about 5.35-5.40 p.m. She had been mistaken when she told police he had come home after 7.00 p.m. and had been confused with the night Christopher died. (In fact Mr Clark arrived home at about 8.10 p.m. as evidenced by records from the taxi firm: see below.)
66. The appellant said that she breast-fed Harry at about 7.30-8.00 p.m. Her husband was with her and they chatted and played with Harry. Her husband put him in the bouncy chair while he went to make a bottle. She sat on the bed and after her husband had been away 3-5 minutes, she looked over at Harry in the bouncy chair. She saw that his head was down and reacted with complete panic. She said the police officer's account of her description of Harry's position was wrong. She denied telling Mrs McDougall that her husband had gone to make supper and she could not remember saying that she had prodded Harry.
67. The following day, Mrs Hurst telephoned. The appellant remembered the conversation, during which her husband had been in the kitchen with her. The appellant remembered saying how unfair it was because she could have children so easily and then something like this happened. According to her, she mentioned the word "genetics" and Mrs Hurst requested they draw up a family tree. The appellant denied telling Mrs Hurst that she got pregnant easily and would try for another child.
68. The appellant had no idea how Harry had died and denied smothering him or harming him at all. Her reaction at losing two children was one of complete disbelief. She had loved them both and denied harming either of them.
69. Mr Clark said in evidence that he and his wife had decided to have another child as part of the grieving process. Mr Clark had injured his ankle just before Harry's birth and they hired Lesley Kerrigan to help with the chores. Mr Clark did not notice Harry in any discomfort when picking him up. They had had trouble with the CONI monitor giving false alarms, which the health visitor thought was due to a loose contact.
70. On 26 January Mr Clark initially said in evidence that he had returned home at around 5.30-5.45 p.m., shortly after his wife had returned from the Health Centre. He had thought it was a 20-25 minute walk to their home from the Health Centre, but later accepted that he had over-estimated the distance. When recalled for cross-examination after receipt of information from the taxi firm he used, he accepted that he must in fact have got home about 8.10 p.m. He denied that he had been bending the truth to reduce the time that the appellant would have been alone with Harry. He remembered little about the events that evening, but had based his initial estimate of his arrival home on information given to him by his firm's receptionist, Mrs Knowles. She had booked a taxi to take him to the airport the following day and he assumed that she had booked his taxi home at the same time. He told police in interview that he could not remember exactly what time he had got back, but thought it would have been between 5 and 6 p.m. He had been getting home earlier to see his son and the taxi book confirmed that. He denied that the appellant was anxious about him coming home late [**]or going away the next day. He spent every evening with Harry and usually gave him his tea and a bath. It was now admitted that, during his interviews in April and July 1998, Mr Clark knew that the experts believed that Harry had been shaken shortly before his death.
71. Mr Clark said that Harry finished his feed at about 9.00 p.m. and his wife handed the baby to him. Harry was asleep and Mr Clark put him in the bouncy chair by the side of the bed and went downstairs to make up a bottle. He had been gone no more than 5 minutes when he heard his wife scream. He went upstairs as quickly as possible. He could not remember whether the appellant was standing or sitting with the baby. He confirmed what he had told police in interview, that the appellant told him that she heard Harry move a couple of times and when she looked over, he had stopped breathing and gone blue. It was not until after the appellant had been interviewed that she told him Harry's head had been slumped forward. Mr Clark took Harry from her and started resuscitation on the floor. He explained that it had to be done hard to be effective. He may not have been doing it exactly as he had been taught, but agreed that he was not pressing in an area near to the first rib. He was present the following day when the appellant had a conversation with Mrs Hurst. He explained that they wanted to find out why Harry had died in case there was a genetic problem. Mrs Hurst asked them to release their medical records and compile a family tree, but he could not remember if that was the same conversation. Mr Clark had been supportive of his wife throughout this ordeal because he knew she loved the babies and would not have done anything to them. He denied covering for her.
Defence evidence: Medical
72. As to the spine, Professor Berry, Dr Whitwell and Dr Rushton doubted the interpretation of the photographs as showing a swollen cord. Many of the findings had either been shown not to exist or had been misinterpreted. Bleeding in the epidural space was commonly found in post mortems of babies and was not significant. The old bleeding was not in an area where one would have expected to see trauma and was more consistent with a birth injury than a shaking injury. Dr Whitwell thought the findings in relation to the spinal cord were artefactual and Dr Rushton agreed they might have been. If they were not, and the swelling was genuine, a possible cause would have been a flexion, extension or rotational injury, but Dr Whitwell had never encountered such a case with only these features and Dr Rushton could not envisage a feasible mechanism to produce such injury. If there had been fresh bleeding and swollen cord, Dr Rushton would have concluded that the death had been unnatural.
73. As to the brain, Professor Berry said that the old haemorrhages were a common finding consistent with almost any cause of death and Dr Rushton felt they might have been birth related, although the small haemorrhages were consistent with smothering. Both Professor Berry and Dr Rushton considered that the hypoxic damage was not significant: it was a subtle finding and could have occurred naturally after death. To that extent they disagreed with the neuropathologists (Dr Smith and Dr Whitwell). Dr Whitwell agreed that the hypoxic damage was consistent with smothering, but it was a non-specific finding. Similarly, the small haemorrhages inside and outside the brain were non-specific, although they could have occurred after an insult, such as smothering.
74. As to the eyes, Professor Luthert has concluded, having seen all the slides, that there were no intra-retinal haemorrhages and had expressed this opinion to Professor Green, who agreed. They also agreed that the blood could have got into the eyes after death and was not significant. In respect of the blood found on the surface of the backs of both Harry's eyes, he agreed with Professor Green that it was not a classic sign of shaking and was not associated with any particular disease. He speculated that it may have occurred during the post mortem, which he thought was most likely, but in cross-examination he agreed that he could not exclude the possibility that it had resulted from suffocation. From his experience, he concluded that eyes removed post mortem with no suggestion of trauma or natural disease could occasionally show blood in the episclera, but he agreed that he did not know the causes of death in those cases.
75. Professor Berry said that the two petechial haemorrhages on the left eyelid were a worrying feature, but he and Dr Whitwell felt that although consistent with smothering, their presence was not strongly indicative. Dr Rushton felt it was difficult to say if the two petechiae had any significance. He agreed they were consistent with asphyxia and unusual in SIDS cases. Professor David found that there was no evidence that the haemorrhages were due to abuse.
76. As to the ribs, Professor Berry said that the fracture of the second right rib had not been confirmed and the process of new bone formation could also occur if there was a bruise. If the dislocated first rib had occurred in life, he would have expected some haemorrhage or tissue damage, of which there was none. He did not think either was a birth injury. The evidence pointed to the dislocation being a post mortem injury and although unusual, he could not exclude the possibility it had occurred in resuscitation. Professor David said that it was particularly unusual to get an isolated fracture from resuscitation and accepted that the ribs were the commonest part to be fractured by abuse.
77. In conclusion, Professor Berry considered that the most worrying features were the petechiae in the eyelids and the fracture of the right rib, if such it were. If the cord had been swollen and the bleeding in the spine caused by trauma, he would have concluded that it had been a traumatic and non-natural death, but it could have been due to an accident. Dr Whitwell said that, if obliged, she would have given the cause of death as not ascertained. She would not classify this a SIDS death because a true SIDS death should be completely negative and would not normally occur at this time in the evening, after a feed, with the child in a bouncy chair. Dr Rushton considered that the cause of death would be unascertained, but he agreed that there were features in both deaths that gave rise to very great concern and for that reason he would not class them as SIDS deaths. Professor David thought there was insufficient data to know why Harry died.

 [JA14] This request for a baby monitor is from the  mother who is later charged with murdering her baby.
[JA15] Professor Green thought otherwise.
[JA16] The  prosecution experts are drawing their conclusions from photos and descriptions of the body and never examined the body of Harry (apart from Dr Williams).
[JA17] If the fracture was 8 weeks old then it must have occurred at or around the time of birth.

[*] The dislocated  rib was not included in Dr Williams's post mortem findings probably because it was dislodged during the post mortem. This would explain why it was not "noticeably painful" either to the mother or to the health profesionals who were in contact with the baby.  For the purposes of this trial (it seems) Dr Williams also retracted his original post mortem finding that Christopher had died from a 'lower respiratory' illness.

[**] The Court of Appeal placed great emphasis in their judgement on the importance of Mr Clark's testimony about his time of arrival at home, the implication being that there was some kind of collusion or cover-up between the two. The prosecution contended that Mrs Clark was anxious about her husband getting home late and that this 'anxiety' (although most wives would natually want their husbands to arive home early)  was argued to be a contributory factor to her 'instability' leading her to kill her babies. In the case of Harry, Mr Clark wanted to show that he had arived home early to be able to vouch for the actions or behaviour of his wife for as long as possible.

The Court of Appeal and the prosecution appear to want to have it both ways: (i) If  Mrs Clark  was anxious about being left alone and wanted the company of her husband in the house for as long as possible (as the prosecution contended) (ii) this runs contrary to the Court's view expressed elsewhere in their judgement that it was suspicious that both her babies died while she was alone with them. For if  Mrs Clark had intended to kill her babies without the knowledge of her husband while she was alone with them (as the Court of Appeal suggests), she would have been more anxious about her husband coming home early.

The prosecution witnesses were not able to agree on the cause of death of either baby, which should have left room for doubt in view of Sudden Infant Death Syndrome that the babies were murdered.

Information on Cot Deaths:
http://www.gla.ac.uk/departments/childhealth/SCDT/textonly/txtcd.html