Case Name:

R v Clark (Sally) Sally Clark

 

 

 

 

Case No: 1999/07495/Y3

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 2nd October 2000

B e f o r e :

LORD JUSTICE HENRY

MRS JUSTICE BRACEWELL

and

MR JUSTICE RICHARDS
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2HD
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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E J Bevan Esq, QC & J Kelsey-Fry (instructed for the Appellant)
R Spencer Esq, QC & M Chambers Esq (instructed for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright

 


Lord Justice Henry:

1. This is the judgment of the Court, to which each member has contributed. On 9 November 1999 at Chester Crown Court after a trial before Harrison J and a jury, Sally Clark was convicted of the murder of her children Christopher (count one) and Harry (count two) when aged 11 weeks and 8 weeks respectively. She appeals against both convictions with the leave of the Full Court, which also gave leave pursuant to s.23 Criminal Appeal Act 1968 for the receipt of fresh evidence.

Facts
2. The appellant, who is 35 years old, is a solicitor of previous good character. She lived in Wilmslow, Cheshire with her husband, Stephen, also a solicitor. They had married in 1990. Their first child, Christopher, was born on 26 September 1996. He was an apparently healthy baby but died on the evening of 13 December 1996 while the appellant's husband was out at an office party. The appellant called an ambulance at 9.35 p.m. When the ambulance arrived, she was unable to unlock the door and was hysterical and in shock[JA1] . It was apparent that the baby had been cyanosed for some time prior to the arrival of the ambulance. He was declared dead at 10.40 p.m. The post mortem was carried out by Dr Williams, who found inter alia bruises and abraded bruises on the body and a small split and slight bruise in the frenulum, which he thought at the time were probably consistent with resuscitation attempts. At the time the cause of death was considered to have been lower respiratory tract infection and it was treated as a case of Sudden Infant Death Syndrome (SIDS or "cot death"). The body was cremated, but photographs had been taken and slides of the lungs were preserved.(Editor's note: the reason why  slides of  Christopher's lungs were retained was because the cause of death according to Doctor Williams (later prosecution witness) was "lower respiratory tract infection". This diagnosis was retracted one year later when Harry died).
3. The couple's second child, Harry, was born on 29 November 1997, three weeks premature but healthy. The appellant received special counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death. Harry died on 26 January 1998. The appellant's husband was at home but the appellant was alone when she discovered Harry's condition. She called an ambulance at 9.27 p.m., saying that Harry was "gone" and that her husband was trying to resuscitate him. When the ambulance men arrived, her husband was kneeling beside the baby on the bedroom floor. There was no sign of life and, despite resuscitation attempts, Harry was pronounced dead at 10.41 p.m. Dr Williams's [JA2] findings at post mortem were indicative of non-accidental injury, consistent with shaking on several occasions over several days, and it was considered that shaking was the likely cause of death. In the light of this, further tests [JA3] were carried out in relation to Christopher and Dr Williams altered his opinion, concluding that Christopher's death had also been unnatural and that the evidence was suggestive of smothering.
4. On 23 February 1998 the appellant and her husband were arrested on suspicion of Harry's murder. In a lengthy interview the following day, she gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in any way.
5. On 9 April 1998 she was further interviewed in relation to Harry and was arrested on suspicion of the murder of Christopher. On the advice of her solicitors she declined to answer questions. She was interviewed again on 2 July 1998 and again on advice she declined to answer questions.

The Trial: Summary
6. It was the prosecution case at trial that the appellant had murdered Christopher by smothering. Until shortly before the trial, the case in relation to Harry was that he had been murdered by shaking. For reasons that we will consider later, however, the case at the trial itself was presented on the basis that Harry had been subjected to a violent trauma to the spine, the mechanism of which was not clear, and had then been the victim of suffocation which caused his death. It was alleged that neither death could be considered SIDS because of the existence of recent and old injuries that had been found in each case, and there was no sufficient evidence as to how they had been caused. The circumstances of both deaths shared similarities which would make it an affront to common sense to conclude that either death was natural, and it was beyond coincidence for history to so repeat itself. (Editor's note: the statistical chance of a double cot death quoted to the jury was 73 million to 1!) In summary, six main similarities were relied upon: (1) the babies were about the same age at the time of death, namely 11 weeks and 8 weeks; (2) they were each found by the appellant unconscious in the same room; (3) both were found at about the same time, shortly after having been fed; (4) the appellant had been alone with each child when he was discovered lifeless; (5) in each case Mr Clark was either away or about to go away; (6) in each case, according to the prosecution, there was evidence of previous abuse and of deliberate injury recently inflicted.
7. The similarities relating to past and recent injuries were contentious.

In relation to Christopher the prosecution relied on:
a) bleeding in the lungs: Christopher had had a nosebleed [Note4] while at the Strand Palace Hotel on 3-4 December 1996, which the prosecution alleged to be consistent with a prior attempted smothering; one of the defence experts. A spontaneous nosebleed in a child of this age would be extremely rare, and for so much blood to have got into the lungs of the child would have required urgent hospital treatment, which was not the case as the child recovered spontaneously. On the other hand, old bleeding in the lungs is a marker (although no more than that) for asphyxia.
b) the torn frenulum[Note5] : this was said to be diagnostic of deliberately inflicted injury and unlikely [JA6] to have resulted from resuscitation efforts; the prosecution alleged that it suggested abuse shortly before death, consistent with smothering;
c) the bruises which had been seen by Dr Williams[Note7] , an experienced pathologist, who was in no doubt about them.
8. In relation to Harry, although some of Dr Williams's findings had not been confirmed, the prosecution relied on the following as showing that Harry must have been the subject of shaking or some violent movement and smothering:
a) hypoxic damage to the brain, which it was alleged must have been caused a matter of hours before death and was consistent with smothering or other trauma;
b) small brain haemorrhages which, although not diagnostic, were consistent with smothering before death and which appear straightaway;
c) petechial haemorrhages on the eyelid, which were an unusual finding in SIDS cases and were acknowledged by the defence expert, Professor Berry, to be a worrying feature;
d) haemorrhages on the back of the eyes which, if present, were consistent with asphyxia;
e) an old fracture of the second rib which Professor Berry agreed would, if confirmed, be a worrying feature which while not causative of death was highly significant if deliberately inflicted;
f) a dislocated first rib, which was unlikely to have been a resuscitation injury and was more likely to have been caused by abuse;
g) spinal bleeding and a swollen cord, seen by Dr Williams on post mortem and which, if confirmed, must have resulted from some trauma.
9. It was alleged that neither the appellant nor her husband had been truthful and that her account in interview of Harry being slumped forward in his bouncy chair was not credible by reason of his age. She had also failed to comment when asked about similarities in the deaths, including that both babies had been in a bouncy chair, although in her evidence she said that Christopher had not been in a bouncy chair. Her husband had not been truthful about the time he got back from the office on the night of Harry's death. The prosecution suggested that the appellant had been tired and anxious about him going away the next day, he had been late home from work and he was trying to minimise the time during which the appellant had been alone with Harry. Features identified by the prosecution expert, Professor Meadow, for an unnatural death as opposed to a SIDS death were applicable: previous unusual episodes, inconsistent accounts between parents, and both events occurring in the evening after a feed. The prosecution also relied on statistics given by Professor Meadow and drawn from a draft report by the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI), in particular that the probability of two SIDS deaths in one family matching the profile [JA8] of the appellant were 1 in 73 million.
10. The defence case was that the appellant did not kill her children or do anything untoward, and that they must have died of natural causes. It was accepted that there were worrying and unusual features, but submitted that the evidence amounted to no more than suspicion. The defence contended that Professor Green and Dr Keeling, two of the Crown's pathologists, gave the cause of death in both cases as unascertained [JA9] and that the case hinged on the reliability of Dr Williams[Note10] , the pathologist who carried out the post mortems.
11. In relation to Christopher, Dr Williams had initially told police that the bruising and torn frenulum were due to resuscitation, but he had now completely changed his stance. His interpretation of marks, not seen at the hospital and not examined under a microscope, was alleged to be unreliable. Whilst the injured frenulum was suspicious, it was suggested that it could have been caused during insertion of the laryngoscope. The fresh blood in the lungs was only a marker for smothering and was often found in both suspicious and cot death cases. In respect of the old blood, there was no doubt that the nosebleed did occur; the appellant was unlikely to have attempted to smother Christopher on the day she had brought him to London to show to her friends, and no-one suggested abuse by her husband. The fact that one expert alone, Professor David, raised the possibility of haemosiderosis [Note11] did not make him wrong.
12. In relation to Harry the most crucial finding related to the swollen spinal cord, leading to the conclusion that he had been shaken to death. However, other findings supporting that conclusion had been shown to be wrong: no tears to the brain, no intra-retinal haemorrhages, no subdural haemorrhage in the spine and no para-spinal injuries. This was a catalogue of errors and none of the classic features of shaking existed. Further, in relation to the hypoxic damage to the brain, the evidence of one of the prosecution experts, Dr Smith, was not consistent with her statement and it was suggested that she lacked objectivity. Another prosecution expert, Dr Keeling, agreed that there was hypoxic damage to the brain, but the defence experts Professor Berry and Dr Rushton did not. In relation to the spine, no expert had been able to postulate how such damage could have occurred without damage to outlying muscles and tissues, and it was submitted that Dr Williams's evidence was unreliable. In relation to the eyes, there were no intra-retinal haemorrhages and the petechial haemorrhages did not provide pathological evidence of smothering. The dislocated rib might have been a post mortem injury and, whilst the fractured second rib was admittedly worrying, the mother's help had not noticed Harry in any discomfort and the injury had not caused death.
13. It was submitted that it was not likely that, out of blind loyalty, a father would cover up for a wife who had killed his children. Mr Clark had made it clear in interview that he was not sure what time he returned home, and had he intentionally fabricated the evidence as to the time of return he would not have mentioned the taxi firm's records which led to the ultimate discovery that his evidence was mistaken. Editor's note: the court overlooks this point at the conclusion of their judgement when they expressed concern about Mr Clark's oral testimony at trial.  The Court forgets that Mr Clark had already referred to the taxi firm's records in his interview as a useful point of reference to establish his time of arrival at home and therefore to try and trip him up over this point at trial can have served no useful purpose in arriving at the truth behind Harry's death. Mr Clark might be forgiven for  trying during the trial to "defend" his wife as best he could, even if this conflicted with his interview statement.
14. In relation to the statistical evidence the defence relied on CONI figures (as opposed to the CESDI figures relied on by the prosecution) and Professor Berry's evidence that the risks were inherently greater in a family that had already had a SIDS death.
15. Thus the central issue on each count was whether the Crown could exclude death by natural causes. The effect of the medical evidence as a whole was that neither baby was the subject of a SIDS death and there was consensus, as the lowest common denominator, that each death was unexplained and was consistent with an unnatural death. But the medical evidence did not stand alone. In the circumstances the credibility of the parents' evidence was crucial for the jury to consider. The absence of any explanation by the appellant for the medical findings, and the inaccuracy of the husband's evidence on the important matter of the time of his return home on the night of Harry's death, were matters of great potential significance.
16. With that introduction we turn to consider in greater detail the evidence given at trial in respect of the death of each baby.

Evidence at trial in respect of Christopher

Evidence at trial in respect of Harry

The grounds of appeal
78. The grounds of appeal as developed before us by Mr Julian Bevan QC, who represented the appellant at the trial, can be summarised as follows:
1) The trial judge was wrong in law in ruling that the evidence on each count was admissible upon the other, and consequently in refusing to sever the indictment and have separate trials.
2) The trial judge wrongly directed the jury that they could take into account the circumstances surrounding both deaths before concluding that either was unnatural. The appellant submits that even if the evidence on one count was admissible upon the other, it could only become admissible once the jury had concluded that the first death was unnatural upon the evidence relating to that count alone.
3) The evidence given by Professor Meadow of the statistical probability of two SIDS death in one family undermined the safety of the convictions, in that the figures cited were erroneous, Professor Meadow's opinion as to the deaths being unnatural was wrongly founded in part on the statistical evidence, and the judge failed to warn the jury against the "prosecutor's fallacy" in relation to the use of statistical evidence.
4) Fresh medical evidence relating to haemorrhages at the back of Harry's eyes undermines the credibility of the Crown's pathologist Dr Williams, both generally in respect of the cause of death of Christopher and Harry and particularly in respect of the cause of death of Harry, in that Dr Williams's findings in relation to the eyes were not comparable with other cases on which he relied in evidence at trial.
5) Further, leave to appeal is sought in respect of a fifth ground, that the trial judge was wrong to leave to the jury the possibility of a finding adverse to the appellant, from her failure to dispute in her police interview that Christopher had been in a bouncy chair at the time of death. The prosecution and the defence having agreed that s.34 Criminal Justice and Public Order Act 1994 did not apply, the trial judge gave the jury no guidance as how they should approach the evidence.
79. Each of those grounds has been resisted on behalf of the Crown by Mr Robin Spencer QC, who also appeared at the trial.
80. We propose to examine each ground in turn, before turning by way of overall conclusion to consider the safety of the convictions.

Ground 1: Severance
81. At a preliminary hearing the judge refused a defence application that the two counts in the indictment should be severed and tried separately. In reaching his decision the judge directed himself by reference to the test laid down in DPP v. P [1991] 2 AC 443 and held:

"My decision is that the similarity between the circumstances surrounding the death of these two children is of sufficiently probative force to make it just to admit the evidence on one count in relation to the other, and vice versa, despite the prejudice that is thereby caused to the defendant. In my view an explanation based on coincidence offends common sense. It is right and proper in the circumstances that the jury should hear about both deaths and that the evidence relating to one should be admissible in relation to the other" (ruling of 9 September 1999).

82. It is submitted on behalf of the appellant that the judge's decision was flawed because he was wrong in law to hold that the evidence on one count was admissible in relation to the other.
83. In DPP v. P the appellant had been convicted in a single trial on counts of rape and indecent assault against two daughters. The certified question asked whether, in a case of alleged sexual abuse of a young daughter of the family, evidence that the defendant also similarly abused other young children in the family was admissible (assuming there to be no collusion) in support of the charge in the absence of "striking similarities" of the kind referred to in R v. Boardman [1975] AC 421. Lord Mackay of Clashfern LC, giving the leading speech, carried out an extensive review of the speeches in Boardman and concluded:

"… I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed …. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle …. Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree" (460E-461A).

84. After considering the particular circumstances of the case under appeal, Lord Mackay continued:

"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle" (462D-G).

85. The relevant certified question was then answered in these terms:

"… the evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence, if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect" (463H-464A).

86. In expressing his conclusions in the present case, the judge held first that he should take into account all the circumstances, including the medical evidence, relating to the death of each child. On the other hand he accepted that it would be quite wrong to adopt the approach that if the defendant had killed one of the children, it made it more likely that she must have killed the other. He set out the correct legal test, drawn from DPP v. P. He bore in mind that the alleged cause of death in each case was different, as was the case at the time of his ruling, but took the view that that fact by itself did not affect the principle of admissibility. Thirteen similarities had been identified by the prosecution but he based his decision primarily on the first six of them. He said that his decision necessarily involved a value judgment of the degree of probative force of those matters. His decision was based on their cumulative force, although he did attach considerable importance to the sixth similarity.
87. The first six similarities referred to by the judge were these:

"(1) Both babies were, according to the defendant, found unconscious by her in the same room [JA22] and apparently in the same bouncing chair, which the medical evidence suggested was not what one would expect in a SIDS' (or cot death) case. Mr Bevan pointed out in respect of that that babies are generally looked after at home; but Mr Spencer replied that this is not just a matter of being in the same house.

(2) Both babies were found by the defendant at almost exactly the same time of the evening, namely about 9.30 p.m. which, it was said, was inconsistent with a SIDS' case. Mr Bevan asks rhetorically what difference it would have made if it was 4.30 p.m. Mr Spencer pointed out that in both cases the babies had taken a feed shortly before their death.

(3) Both babies died at about the same age: Christopher 11 weeks, Harry 8 weeks. Mr Bevan submitted that the evidence was that cot deaths are most common with young babies of up to three months, but Mr Spencer pointed out that the coincidence was still there nevertheless.

(4) In each case the defendant was alone[JA23]  [with] the baby at the time of discovery. Mr Bevan submitted that that was of no significance at all, whereas Mr Spencer said that it was significant because in the case of Harry on the evidence the defendant had only been [alone] with the baby a short time of four minutes or so.

(5) In each case the defendant's husband was either away or about to go away from home in connection with work. Mr Spencer referred to evidence showing that she was resentful of being left on her own and tended to drink more heavily when her husband was away. In the case of Christopher he was away at an office party. In the case of Harry, he was about to go to Glasgow on business the next day. In the case of Harry the defendant visited the off-licence on two occasions to buy some wine, saying (falsely, it would appear) that they were having a dinner party that evening. Mr Bevan accepted the factual circumstances, but submitted that there was no significance in those circumstances, whereas Mr Spencer submitted that it was significant because it was an unusual feature that he was either away or about to go away on both occasions.

(6) In each case there is evidence of previous abuse prior to the fatal episode: in Christopher's case, asphyxiation[JA24] ; in Harry's case, shaking[JA25] . Mr Spencer said that if both deaths were natural deaths, what a coincidence it would be if, in each case, nevertheless there was evidence of unexplained previous abuse. In the case of Christopher, there was a great deal of old blood in the lungs, which was unexplained and was consistent with smothering; and in the case of Harry, there was evidence of shaking on at least one previous occasion. In relation to that, Mr Bevan pointed to the evidence of Dr Keeling that, even in SIDS' cases, one can find recent haemorrhage, and, although this related to old haemorrhage, that logic should dictate the same approach. Mr Spencer referred to Dr Keeling's evidence that in relation to both the old and the new haemorrhage, in her view there was no natural explanation for it."

1. 1. By the time of the trial there were developments affecting that list of similarities. In particular, following the experts' agreement as to the absence of intra-retinal haemorrhages in Harry's eyes, the prosecution case in respect of cause of death in Harry's case had shifted away from shaking towards smothering. Emphasis was also placed on evidence of previous abuse in the form of the rib fracture suffered by Harry some weeks before death. Those matters tended if anything to strengthen the case for a single trial based on similarities between the circumstances of the two deaths. They did not prompt any defence application for reconsideration of the judge's decision on severance. If, therefore, the judge's original decision was valid on the material then before him, nothing happened thereafter to undermine its validity.
2. Mr Bevan makes a number of detailed points in relation to the similarities relied on by the judge and submits more generally that they do not provide a basis upon which it can properly be concluded that the circumstances of one death provide probative evidence relating to the other. We deal first with the detailed points which, for the reasons given below, do not in our view undermine in any way the judge's reliance on the six similarities:

1) Mr Bevan submits that if both deaths were from natural causes it cannot be said to have been unlikely that they would occur in the same room or in a bouncy chair. Moreover the appellant told the paramedics that she had found Christopher in a Moses basket and it was only when hysterical at the hospital that she spoke of finding him in a bouncy chair. In our view, however, this was properly treated as a similarity of significance. The fact that the appellant gave inconsistent accounts of where she found Christopher adds to its significance rather than detracting from it. So does the fact that the description she gave of Harry slumping forward in his bouncy chair was physically impossible.

2) It is said that no significance can attach to the fact that both babies were found at about the same time. In our view, however, the similarity in timing was remarkable and the fact that both babies were found at about 9.30 p.m. has to be considered in the light of the evidence of Professor Meadow that the time was unusual for natural sudden deaths.

3) It is said that the age of the babies is of no significance since it is the age at which SIDS deaths occur. We accept that the point on age would be of no real weight standing alone, but in our view it is a similarity properly taken into account as part of the overall picture.

4) The point is made that, although the appellant was alone when both babies were found, she was not alone in the house at the time of Harry's death and according to Mr Clark had not shown any sign of stress or irrationality. We think it striking, however, that Harry was found as he was in the few minutes when the appellant and her husband were apart. [JA26] Her state of mind at the time is considered under (5) below.

5) Mr Bevan submits that the prosecution's attempt to link the killing of Harry with Mr Clark's business trip the next day, like its attempt to link the killing of Christopher with Mr Clark being away from home at an office party, made no sense. In our view, however, there was in this respect a significant similarity between the circumstances of the deaths. Further, the suggestion that the appellant was anxious about her husband's impending departure on his first trip away from home since Harry's birth made good sense as part of the prosecution case that she had attempted to smother Harry earlier that evening and had subsequently killed him. In the event that case was strengthened by the discovery [JA27] that Mr Clark had arrived home that evening much later than he had said in evidence in chief, lending force to the suggestion that he was trying to cover up some incident earlier in the evening. That inconsistency in Mr Clark's evidence also tended to cast doubt on the reliability of his evidence as to the appellant's state of mind at the time. It is true that the prosecution was not able to rely at trial on evidence as to the appellant's consumption of alcohol, to which the judge referred in his ruling on severance but which he then excluded in a separate exercise of discretion. But the overall case at trial in relation to similarity (5) was if anything stronger than that at the time when the judge took the similarity into account in his ruling on severance.

6) Mr Bevan accepts that there was evidence consistent with previous abuse in relation to both babies, but he points to various considerations as tending to weaken the force of that evidence. We do not think it necessary to examine those considerations here. It suffices that there was such evidence which, in the form in which it developed by the time of the trial or during the trial, was properly left to the jury. The existence of such evidence in relation to both babies was a similarity to which the judge was entitled to attach considerable importance. A related and obvious point, to which the judge referred expressly in his summing up although it was not separately articulated as a similarity at the time of his ruling on severance, was the evidence of injury recently inflicted on each baby at the time of death. The overall similarity in terms of evidence of past and recent abuse was in our judgment a most compelling consideration.

88. 88. Turning to Mr Bevan's more general submission, its essence is that the circumstances surrounding the death of each child may strengthen suspicion in relation to the death of the other but are incapable of providing probative evidence in relation to that other death. The central issue in each case was whether the prosecution could exclude the possibility of natural death. That depended on the medical evidence relating to the death in question. The circumstances surrounding the other death could not help in the resolution of the issue. In any event they did not constitute "... such an underlying unity between the offences as to make coincidence an affront to common sense" (per Lord Hailsham in Boardman, as quoted by Lord Mackay in DPP v. P at p.456D), nor did such evidence "point so strongly to … guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it" (per Lord Cross in Boardman, as quoted in DPP v. P at p.456G).
89. We do not accept that submission. The prosecution's case against the appellant depended on a large number of pieces of circumstantial evidence, including not only the medical evidence concerning each baby but also evidence going to the credibility of the appellant and her husband. In that context the various similarities referred to by the judge could properly be relied on as supporting the prosecution case and as tending to prove the appellant's guilt on each of the counts. They made an explanation based on coincidence very much less plausible, if not an affront to common sense. In any event it would have been an affront to common sense to require the jury to consider only one of these deaths in isolation from the other. The overall circumstances of the two deaths were plainly relevant to the assessment of guilt in respect of each of them.
90. In so far as Mr Bevan's submission is that evidence of the circumstances of one death are admissible in relation to the other death only if that evidence is sufficient in itself to exclude the possibility that the other death was natural - sufficient, in effect, to prove guilt in relation to the other death - that submission overstates the requirement for the admission of evidence on grounds of similarity. DPP v. P does not lay down so high a hurdle for the admissibility of such evidence. Such evidence can have sufficient probative force to make it just to admit it even though, taken by itself, it would not be sufficient to prove guilt. Proof of guilt depends on the combination of the evidence admitted on grounds of similarity and the other evidence in the case.
91. There is a further question whether the evidence concerning one death was of sufficient probative force to make it just to admit it in relation to the other death despite its prejudicial effect. That question involved, as the judge observed, a value judgment. Lord Mackay in DPP v. P described it as "a question of degree" (p.461A). Mr Spencer suggested that the correct approach of this court should therefore be to review the judge's value judgment, in the same way as when reviewing an exercise of discretion, rather than to substitute its own independent judgment on the question. We see force in that submission but do not think it necessary to decide that point since we are each satisfied that we would reach the same conclusion as the judge in any event.
92. For the reasons given, we hold that the judge's ruling on severance was legally impeccable. This ground of appeal therefore fails.

Ground 2: Direction on similar fact evidence

Ground 3: The use of statistics

Ground 4: Fresh Medical Evidence
169. The fourth ground of appeal is based on the fresh medical evidence adduced pursuant to leave granted by the Full Court. For that purpose we received a number of expert reports and heard examination and cross-examination over a period of some days. The issues relate to the medical evidence given at trial as to the existence of haemorrhages at the back of Harry's eyes.

The position at trial
170. Before the trial began the Crown were relying on eight medical findings by Dr Williams at post-mortem examination of Harry: 1) hypoxic damage to the brain at least two hours before death; 2) small haemorrhages on the brain; 3) two petechial haemorrhages on the eyelid; 4) haemorrhages to the back of the eyes; 5) old fracture to the second right rib; 6) dislocation of the first rib; 7) spinal bleeding with a swollen cord; 8) intra retinal haemorrhages.
171. Shortly before the trial began, Professor Green and Professor Luthert met to discuss their findings, as a result of which they agreed that the intra retinal bleeding was of post mortem origin and must be completely discounted. The significance of that agreement was that it excluded death by shaking, in that intra retinal haemorrhages are a very strong feature of shaken babies. The prosecution thereafter presented their case on the basis that Harry had been subjected to a violent trauma to the spine, the mechanism of which was not clear, and had then been the victim of suffocation which caused his death. The prosecution also relied on earlier abuse as evidenced by the injuries to the ribs.
172. At trial Dr Williams, the paediatric pathologist who performed the post mortem, gave evidence that when he opened up the orbits, on the upper surface of the right eye there was an area of haemorrhage about 7mm across and on the outer aspect of the left eye there was a small area of haemorrhaging about 2mm across. He described the position of the haemorrhages as behind the eyelids, on the covering of the eye within the scalp and not visible by someone looking at the face. When asked by counsel for the Crown whether he had seen that before he replied:

"I've seen it since. Its not described in any of the books as yet. I mean, the only time I've seen it is in acute cases of overlaying and smothering where there has been an asphyxial mechanism but I can't say that its invariably present".

173. He was asked about the cause of death and whether asphyxia/ smothering was something which he could or could not exclude, to which his answer was:

"apart from the petechiae in the eyes, there is no other evidence of smothering".

174. Dr Williams acknowledged that he did not know the significance of the haemorrhages and how they occurred, but a blood vessel in the eye had leaked for certain although he did not know the cause. Dr Williams did not agree with the proposition that the haemorrhages were artefactual resulting from the post mortem. He was not asked any questions by the defence in cross examination in respect of other similar cases to which he had referred, but in re-examination counsel for the Crown asked Dr Williams:

"Q You expressed an opinion when I asked you questions yesterday based upon recent experiences you said.

A I've seen these haemorrhages again more recently in some cases where there's undoubtedly been smothering or overlaying, but I mean they are not always present and they are not invariable, they are just an observation one has made on a couple of occasions.

Q This is in children of what age?

A Similar sorts of ages to these, but whether they are just there by chance, because it's well recognised that in asphyxia mechanisms of death, whatever the cause, that you get quite large haemorrhages at the front of the eyes, but in addition you not only get the petechial, small pin point haemorrhages but in the whites of the eye you see quite large haemorrhages on occasions. Now in discussing it, or thinking about it with colleagues one wonders whether its just a reflection, what one sees in the front of the eye occurring in the back of the eye, but its not been reported.

Q But in the cases you are describing have you seen it on the back of the eyes or the front of the eyes?

A In these cases it's again been on the back of the eye, but can I just say that it's not a normal practice in strangulations in older people, even older children, one does not routinely examine the backs of the eyes, one does not take the roof of the orbit off, and as a result it may be that we have not been looking rather than it's not there."

175. Dr Williams was not asked by either side to produce records of any other case histories and his final position on this topic was that he could not exclude smothering, or asphyxia. He agreed that he could not exclude the possibility that some leakage from one of the small veins in the fatty tissue surrounding the eye might have caused one or both of the haemorrhages.
176. Professor Green gave evidence that he had discussed the haemorrhages with Professor Luthert and neither of them had seen such haemorrhages in eyes removed post mortem. Professor Luthert had suggested to him that the leakage from a small vein was a possibility during removal of the eyes and when asked to explain how this might arise he replied:

"... because as you are removing the eyes from the orbit, you have to cut through the various muscles that make them move from side to side and up and down. You also have to cut through the optic nerve and you will cut through the optic nerve and you will cut through the blood vessels which are supplying the eye, and the tissues around them. And veins, even though after death there is no pressure in them, can ooze a little blood."

177. Professor Green then stated that the 7mm haemorrhage was on the surface of the eye itself and the photographs did not show bleeding in the adjacent fat. When asked what this signified he replied:

"I can only speculate, and as I say I have never seen anything like this in my personal experience: had a vein of any size been cut I would have thought that there would have been more diffuse bleeding in the fat covering the eye as well as on the surface of the eye itself."

178. He then deferred to the greater experience of Professor Luthert in removing eyes.
179. Professor Green was asked whether upon removal of the eyes, blood dripping down from a cut vein on to the globe of the eye could have accounted for haemorrhage. His reply was:

"The blood was between the membrane covering the hard white globe of the eye". If this had been blood just dribbling from a cut vein onto the globe of the eye, I would have expected it to be not so clearly defined and localised on the police photograph [JA28] and I would have expected it to have washed away it was merely on the surface before the section of the eye was cut, because as I said in one section which I examined with Professor Luthert you can actually see this little blister full of red blood cells underneath the membrane covering the eyeball. So in short, I can't exclude the leakage from the vein theory, but these are the reasons why I am unhappy about it."

180. The witness went on to state that he had occasionally seen bleeding of that sort and in that area in living patients but had never seen it in post mortem specimens and although he had not made a detailed search, he had not found it in the standard text books on ophthalmic pathology.
181. Professor Luthert, a consultant ophthamologist and neuropathologist, in evidence stated that he had never before seen haemorrhages on the posterior aspect of eyes at post mortem, and it was speculation as to how they were caused. He disagreed with Professor Green that if the blood had dripped onto the eyes from a cut vein, it would have washed away because in his experience material within the episclera did not necessarily wash out when it was applied from outside post mortem since the material above the eyes was absorbent. He was of the opinion that the haemorrhage was an artefact but could only speculate how it was caused. He was asked by counsel for the Crown as follows:

"Q So can we take it Professor that you are not excluding the possibility that suffocation could cause haemorrhage of the eyes similar to that scan at the back of Harry's eyes?

A No I cannot totally exclude that no.

Q Well why do you say totally?

A Because in my opinion it is unlikely but I can not exclude it".

182. Professor Luthert was further questioned:

"Q I suggest Professor that the haemorrhages to the back of Harry's eyes are consistent with his having suffered death by asphyxia?

A I think they are consistent with that because I believe they might be there anyway".

183. In re-examination he was asked:

Q Professor is there any medical knowledge or learning associating these sort of haemorrhages that we have found on the surface of the back of the eye with suffocation or strangulation?

A Not that I have any knowledge of no".

184. Dr Keeling, who is a consultant paediatric pathologist, deferred to the expertise of the ophthalmic consultants. She gave evidence that she had not encountered haemorrhages on the back of an eye, could not think of any explanation to account for their presence but did not consider that blood could have dripped onto the surface of the eye, because the blood was not on the surface but was lying between two layers of the structure of the eyeball.
185. At the conclusion of all the evidence at the trial, the evidential position in respect of the haemorrhages at the back of Harry's eyes was as follows:
a) Only Dr Williams, who is not an expert on eyes supported the proposition that the haemorrhages were real as opposed to artefactual. The opthalmic experts considered that the haemorrhages had been caused at post mortem either by blood dripping onto the surface of the eyes, or by nicking the vortex vein.
b) Although Dr Williams stated in evidence that he had seen such haemorrhages as Harry displayed "in acute cases of overlaying and smothering where there has been an asphyxial mechanism" he did not rely on that as a finding which proved smothering in Harry's case. His position was that apart from the petechiae in the eyes there was no other evidence of smothering.
c) Professor Luthert accepted that he could not totally exclude the possibility that the haemorrhages were consistent with death by asphyxia, and he stated that "they are consistent with that because I believe they might be there anyway".
d) Neither Professor Luthert nor Professor Green had ever seen or heard of, or read in literature of such haemorrhages at a post mortem, although they had observed them in living patients.
e) The evidence in respect of these haemorrhages was peripheral to the main issues in the case, and had occupied little time of the court when compared with principal medical issues.
186. In his summing up, which was spread over three days, the judge reminded the jury of the evidence given in relation to the haemorrhages. In respect of Dr Williams he said this:

"Secondly, so far as the eyes are concerned, on internal examination, Doctor Williams found an area of haemorrhage about 7 millimetres across on the upper surface of the right eye and also a small area of haemorrhage on the upper surface of the right eye. Indeed, he said he saw it immediately the eyes were exposed. Doctor Williams said that he had only seen such features in cases of death caused by over-laying or smothering."

187. It is to be noted that the judge dealt with Dr Williams's experience of haemorrhages at the back of eyes in the single sentence at the end of that passage, and without further comment.
188. He later reminded the jury of the evidence given by the defence experts:

"Next Professor Luthert dealt with the blood that had been found on the surface of the backs of both Harry's eyes. He and Professor Green agreed that it was not a classic sign of shaking and that it was not a finding associated with any particular disease. Professor Luthert speculated that the blood might have dropped down on to the eyes during dissection. He said that the blood appeared to be beneath the access points for dissection to both of the eyes.

That was challenged in cross-examination but he said that the de-roofing of the orbit was quite extensive so there did not have to be a precise alignment. He described it in cross-examination as total speculation that the blood had dropped down in that way but he said it was a workable hypothesis in the absence of any other explanation. He also agreed that he could not exclude the possibility that it resulted from suffocation. He considered, however, that it was most likely that the blood had accumulated post mortem and was not indicative of any pathology before death. He said that he saw no significant pathology in Harry's eyes.

It was suggested to Professor Luthert that if the blood at the back of the eyes had dropped down during dissection it would be a common occurrence but Professor Luthert said that pathologists do not necessarily focus in on every aspect of what they are looking for and that routinely they factor out the presence of blood. By that he meant that they would tend to assume that haemorrhaging is due to blood loss at the time of post mortem, unless it is something out of the ordinary. He agreed, however, that pathologists would be on the look out for this kind of blood during a general examination of the eyes."

189. At the end of his summing up he gave the jury a brief reminder of the way both sides put their cases in counsel's final speeches. In relation to Harry the prosecution pointed out that, although some of Dr Williams's findings were not confirmed, there were a large number of important findings of his which were confirmed. The first three items listed were: (1) the hypoxic damage to the brain due to lack of oxygen; (2) the small brain haemorrhages; and (3) the petechial haemorrhages on the eyelid, which had been confirmed by other experts' medical evidence. The fourth was the haemorrhages to the back of the eyes:

"Fourthly, the haemorrhages to the backs of the eyes which Professor Luthert thought were artefactual but which he said could possibly be consistent with asphyxia. You were reminded that Dr Spillman who had been at the post mortem had immediately noticed the 7mm area of haemorrhage."

190. The remaining items were: (5) the fracture of the second rib; (6) the dislocation of the first rib; and (7) the spinal bleeding and swollen cord. The injuries to the ribs were confirmed by other medical experts, and the injury to the cord depended upon Dr Williams's own observation, but if accurately observed was agreed by all experts to be highly significant and must have resulted from trauma.
191. Turning to the defence case, the judge reminded the jury of the various matters relied on as casting doubt on Dr Williams's reliability. In relation to the haemorrhages at the back of the eyes, the defence case was as follows:

"[Professor Green] was also wrong, it was submitted, in saying that if the blood on the backs of the eyes had been artefactual, it would have been washed away because Professor Luthert had shown that the material above the eyes was absorbent."

192. It is apparent therefore that in a summing up which covered over 170 pages of transcript, the references to the haemorrhages at the back of the eyes played a minor role.

The issues now raised on appeal
193. After the appellant had been convicted, the solicitors acting for her entered into correspondence, initially with Dr Williams and then with the CPS, requesting disclosure of the case records which Dr Williams had referred to in evidence. The release of post mortem reports and supporting documents and materials required the consent of the coroners concerned.
194. On March 30th 2000 the CPS wrote to the solicitors for the appellant in the following terms:

"With reference to your letter of 14th March 2000 detailing specific requests of Dr Alan Williams he has responded as follows:

Dr Williams confirms that he has identified one baby death which has recorded haemorrhages in the orbit and on the surface of the back of the eye, and also an adult case with the same findings seen recently. He has not extended his search further. If required he can produce these reports with the permission of the appropriate coroner."

195. Subsequently Dr Williams found a third case.

The effect of the fresh evidence

223. We have concluded that the fresh evidence on this issue does not have any possible effect on the safety of the convictions. The evidence relates to a discrete and marginal aspect of the case, and was in effect a very small and relatively insignificant part of a complex case which involved many major medical issues. Had the jury heard the new evidence, they might have found that the haemorrhages of Harry's eyes were real and not artefactual, and that the case histories did lend support to Dr Williams' observations of an association between asphyxia and haemorrhages behind the eyes, as defined by Dr Williams. The new evidence contains credible testimony to support both propositions and might have undermined the defence position in respect of those haemorrhages. The fresh evidence is capable of affirming rather than undermining the credibility of Dr Williams.

Ground 5: Direction on "no comment" interview

Conclusions on the safety of the convictions
231. We have concluded that there is substance in only one of the grounds of appeal, namely that relating to the statistical evidence as to the rarity of SIDS deaths (ground 3, in particular 3(c)). In the light of the fresh evidence and related submissions, we have accepted that there was an error in the way in which the statistical evidence was treated at the trial. It remains for us to consider whether that error of approach rendered the convictions unsafe.
232. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides:

"(1) Subject to the provisions of this Act, the Court of Appeal -

shall allow an appeal against conviction if they think that the conviction is unsafe; and

shall dismiss such an appeal in any other case."

233. The approach to be adopted by the Court of Appeal in a case involving fresh evidence was considered in Stafford and Luvaglio v. DPP [1974] AC 878. Its effect was summarised by Lord Lane CJ giving the judgment of the court in R v. Callaghan (1989) 88 Cr App R 40, 47:

"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."

234. That approach was further endorsed in R v. Jones [1997] 1 Cr App R 86, a case decided under s.2(1) of the Criminal Appeal Act 1968 in its present form. Lord Bingham CJ, giving the judgment of the court, set out the passage we have quoted from Callaghan and went on (94C-D):

"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."

235. In two recent decisions of this court to which our attention has been drawn, R v. McCloughlin (30 November 1999, unreported) and R v. Cairns [2000] Crim LR 473, the court expressed itself in terms of the effect that the fresh evidence might have had on the jury. But we do not understand the court to have been purporting in those cases to lay down any different test from that in Callaghan and Jones. As pointed out in Callaghan, in the passage we have quoted, the court may choose to test its views by asking itself what the original jury might have concluded.
236. In the present case, however, we are concerned not simply with the assessment of fresh evidence but with the implications of an error of approach at trial as shown by that evidence. We should therefore have regard not only to the fresh evidence cases, but also to the authorities concerning unfairness or legal error in the trial process itself. For that purpose it is sufficient to cite the statement of principle in the recent judgment of the Court in R -v- Davies & Others (17 July 2000), a case in which the Court examined the relationship between the concept of safety and unfairness or misdirection at the trial:

"The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been 'vitiated by serious unfairness or significant legal misdirection'. ... Usually it will be sufficient for the court to apply the test in Stirland which, as adapted by [counsel] might read:

'Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'

That being so there is no tension between s.2(1)(a) of the Criminal Appeal Act, 1968 as amended, and s.3(1) of the Human Rights Act, 1998".

237. With those authorities in mind, we turn to examine the overall strength of the case against the appellant, and to consider, in the light of it, whether the error in relation to the statistical evidence at trial had any effect on the safety of the convictions.

The strength of the case at trial
238. We have considered with care the extensive evidence placed before the jury at trial, and we have concluded that there was overwhelming evidence of the guilt of the appellant on each count.
239. No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS. Only the appellant relied on that contention, because she had no explanation nor credible account in respect of the previous injuries sustained by each baby . Young, immobile infants do not sustain injury without the carer having a credible history as to how the injury was caused. There was no such history from the appellant.
240. Medical evidence in respect of Christopher demonstrated that provided the jury accepted Dr Williams's evidence of the bruising and torn frenulum, there was an overwhelming inference that Christopher had been subjected to physical abuse shortly before death, and consistent with smothering. The findings of fresh blood and old blood in the lungs were independently consistent with smothering causing death and previous attempted smothering. The extent of the old blood in the lungs was inconsistent with a natural nosebleed because such an event would have required hospital admission for a seriously ill baby, whereas Christopher spontaneously and rapidly recovered from a nosebleed which was insufficient to stain clothing.
241. The recurrent features of infant killing originally thought to be natural death, and identified by Professor Meadow, were present: the previous unusual nosebleed unsatisfactorily explained; the time of evening when Christopher died; the fact that prior to death he had been well and had taken a feed; the inconsistent history recounted by the appellant as to whether Christopher was in a Moses basket or a bouncy chair.[JA29] 
242. The behaviour of the appellant at hospital when told her baby was dead impressed Dr Douglas as "... very dramatic and almost hysterical [JA30] ..." and was described by her as "... such an over-reaction."
243. Medical evidence in respect of Harry identified: Editor's Note: It is important to appreciate here that NONE of the experts on either side agreed about anything in this case; only Doctor Williams conducted the post-mortems on both babies and even his evidence is contradictory or ambivalent. Read the evidence at trial on the two babies above. There was hardly consensus on any matter.
a) extensive fresh bleeding around the spine; and, if Dr Williams's observations were accurate, swollen spinal cord;
b) hypoxic damage to the brain which occurred at least three hours before death;
c) haemorrhaging to the surface of the brain consistent with smothering;
d) petechial haemorrhages to the eyelid consistent with smothering;
e) unexplained haemorrhaging to the outer surface of the backs of both eyes;
f) fracture of the second rib which was some four weeks old for which there was no natural explanation;
g) dislocation of the first rib.
244. Professor Berry and Dr Rushton who gave evidence for the defence agreed that if Dr Williams's observation of a swollen spinal cord was accurate and the bleeding in the spine was from trauma, they would conclude a traumatic non-natural death and the fracture of the second rib and the petechiae in the eyelids would cause even more concern of a history of abuse.
245. All the experts agreed that in order to assess whether the spinal cord was swollen, the naked eye was best placed to identify it and the pathologist can feel the spinal cord at post-mortem. Although none of the experts could identify a precise mechanism of injury to give rise to a swollen cord, it was agreed that some form of flexion, extension or rotation injury was the most likely.
246. The consultant neuropathologists called - for the Crown Dr Smith, and for the defence Dr Whitwell - agreed that there was hypoxic damage some hours before death and if Harry died shortly before 9.37 p.m. when the 999 call was made, the hypoxic damage could have been caused from 5.30 p.m. onwards, because a least two hours had to elapse before death to account for the presentation of the nerve cells. At all relevant times the appellant was alone with Harry.
247. All the experts agreed that the haemorrhages on the surface of the brain were a non-specific indicator of smothering, but were entirely consistent with smothering and could have occurred immediately after smothering. The petechial haemorrhages in the eyelid were agreed to be consistent with smothering by Professor Berry, Dr Whitwell, Dr Rushton, Dr Williams, Professor Meadow and Dr Keeling. No other condition was found in Harry to account for the presence of the petechiae, and the experts regarded them as worrying features which, as Dr Rushton stated, raised the spectre of asphyxia.
248. In respect of the dislocation of the first rib, although there was an issue as to whether it was the result of injury before death, or whether it might have been a resuscitation injury, all the experts agreed that it would be very unusual to see a fracture dislocation of ribs from resuscitation, and particularly an isolated fracture not matched on the other side.
249. The strength of this medical evidence in respect of Harry was that, if the jury accepted Dr Williams's evidence about the spinal cord, there was an overwhelming inference that Harry had been subject to trauma shortly before death, and had hypoxic damage consistent with suffocation earlier in the evening.
250. The appellant never at any time gave a history to account for the fracture of the second rib, for which no natural explanation was available, and which occurred to a four week old, immobile baby. Such injury called for a credible account to account for it, but none was given.
251. The appellant's description of Harry slumped forward in his bouncy chair was demonstrably untrue.
252. Professor Meadow identified recurrent features in killings [initially] thought to be natural: the time of day, the fact that Harry had been well and had taken a feed; the inconsistency between the appellant's account and her husband's as to what he was doing downstairs; smothering is often combined with other abuse.
253. The untrue evidence given by Mr Clark about the time of his homecoming[JA31] , which necessitated his recall at trial, was of the greatest significance in our judgment because had he arrived home at 5.30 p.m., it would have undermined the prosecution case. Mr Clark and the appellant gave evidence which initially vouched for the contention that the appellant was not alone with Harry, and did nothing to him during the evening. The fact that he had to be recalled to admit that he arrived home some 2 hours later signified that the appellant had been alone with Harry, and that her husband could in not way vouch for her. It is further highly significant in our judgment that upon recall, he denied knowing that there was a prosecution allegation that Harry had sustained hypoxic damage earlier that evening when the appellant was alone with Harry, although he had been questioned by the police on that basis in April and July 1998, and the defence formally admitted service of the medical reports which contained this allegation. The credibility of Mr Clark had relevance not only to the circumstances of Harry's death, but also to his account of Christopher's nosebleed.
254. The reaction by the appellant to Harry's death in a conversation with the coroner's officer, Mrs Hurst, when she told the officer that she and her husband would try for another baby, struck Mrs Hurst as most unusual.
255. Taken separately there was a very strong case on each count. Take together we conclude that the evidence was overwhelming having regard to the identified similarities:
a) the babies died at the same age;
b) they were both found by the appellant and both, according to one version of the appellant, in a bouncy chair;
c) they were found dead at almost exactly the same time of evening, having been well, having taken a feed successfully, and at a time when the appellant admitted tiredness in coping;
d) on each occasion the appellant was alone with the baby when it was found lifeless;
e) on each occasion the appellant's husband was away from home, or about to go away from home;
f) in each case there was evidence of previous abuse: for Christopher an attempted smothering[JA32] ; for Harry an old rib fracture;
g) in each case there was evidence of deliberate injury recently inflicted: for Christopher bruising and a torn frenulum; for Harry hypoxic damage, petechial haemorrhages in the eyelid and fresh bleedings of the spine and swelling of the spinal cord;
h) the rarity of two natural deaths in one family with the first five features above present, and the extraordinary coincidence, if both deaths were natural, of finding evidence of old and recent abuse.
256. For all those reasons, we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached. Had the trial been free from legal error, the only reasonable and proper verdict would have been one of guilty.
257. It follows that in our judgment the error of approach towards the statistical evidence at trial identified at paragraph 181 (Ground 3(c)) did not render the convictions unsafe.
258. The appeal against conviction on each count is therefore dismissed.

 


 [JA1]  What does this  reaction signify?

 [JA2]  Same doctor  in both cases.

 [JA3]  Christopher was cremated so what kind of  tests could have been performed a year later to warrant a change of opinion?

 [Note4] This information was divulged by the parents to their friends and health advisors. If the mother wanted to cover up any evil deed why would she inform others about her son’s nosebleed?

 [Note5] The muscle which holds the underside of the tongue to the base of the mouth.

 [JA6] How unlikely?

 [Note7] Were these bruises noted in the Doctor’s post mortem report?

 [JA8] What has the profile of the appellant to do with cot death (which can strike anyone)?

 [JA9] If correct, this  would allow the presence of a reasonable doubt

 [Note10] This doctor originally stated that Christopher had died from a respiratory infection. How reliable was that finding?

 [JA12] abnormality of the epithelial lining   of the alveolar or bronchiolar capillaries.

 [JA13] How would the doctor know if this was an “over-reaction”? How many times had she witnessed a mother’s reactions in such circumstances?

 [Note14] Yet Dr Williams said that any biological tests on blood would be meaningless.

 [JA15] Why tell her about the nosebleed if she had anything to conceal?

 [JA16] If this witness was introduced to the jury as such, this would have produced a prejudicial effect on the jury.

 [Note17] Dr Cowan and a sergeant had earlier not noted any bruises or external marks.

 [JA18] Was this decision based on any medical evidence? If not, what can the opinion of this doctor be worth? If the cause of death was simply a guess to expedite the funeral arrangements then the doctor's credibility would be an issue. If the cause of death was however accurately described at the time, then Christopher was not murdered. This doctor was the prosecution's main expert witness and the reliability of his testimony is crucial to this case since it was only he who examined the bodies of both children. Why did he change his view of  Christopher's death one year later when the appellant's second child Harry died?

 [Note19] This would be true of normal babies

 [JA20] Why hadn’t  Dr Williams formed the same view at the time of Christopher’s post-mortem?

 [JA21] These experts never examined Christopher’s body which had been cremated and only examined photographs which were apparently of "poor quality".

 [JA22] This was a room containing a television where the mother could both watch TV and her baby.

 [JA23] Mothers usually spend more time alone with their babies.

 [JA24] This was not noted at the time by Dr Williams. A year later, from photos and a few slides, this view was however adopted by the ‘experts’.

 [JA25] The prosecution’s experts concur that the cause of death was ‘unascertainable’.  At the same time they are sure it was not Sudden Infant Death Syndrome, although they do not know the causes of this condition.

 [JA26] How many times did the husband leave the TV room  in the course of an evening?

 [JA27] If his office was paying for the taxi journeys this does not take much of a ‘discovery’ and Mr Clark (a lawyer himself) would have been rather nave to assume that he could conceal his time of arrival.

 [JA28] The experts are drawing their conclusions from photographs – not from an examination of the body.

 [JA29] What relevance has this to the credibility of the defendant?

 [JA30] Was this in any way different from the distrsss shown to the ambulance men?

 [JA31] Mr Clark’s time of arrival was evident from the taxi company’ records which showed that he had been coming home earlier in recent days. If he had deliberately tried to protect his wife by claiming to have arrived home earlier, this does not mean it is because she was guilty. People can be mistaken about timings which is not an issue in this case.

 [JA32] This was not claimed by Doctor Williams at the time of  Christopher’s autopsy who he put the cause of death as “lower respiratory infection”. He changed his view one year later after Harry’s death.