Perfect statistics?

Nothing sticks in the public psyche quite so doggedly as an easy statistic to sum up a complex concept. In the case of solicitor Sally Clark, convicted of murdering her two baby sons, expert evidence decreed that the chance of two cot deaths in one family was 73 million to one.
Since the trial that infamous statistic has developed its own resonance both in the tabloid press and with the wider public – despite the fact that the Court of Appeal ruled that it was “erroneous”. The Sun ran a headline for the story of another similarly bereaved mother that read: “It may be 73 million to one but it happened to me.”
According to solicitor John Batt, former senior partner and now consultant at London firm Batt Holden, there were 14 experts called to give evidence in his client Clark's case when the case was heard by the Court of Appeal last October. Only one was singled out by the appeal judges and that was Sir Roy Meadow.
“An expert is called by one side or another, but they are experts giving evidence to the court,” says Batt. “They aren't supposed to be partisan in anyway, but that is rubbish, of course, as Meadow always gives evidence for the prosecution.”
Meadow is emeritus professor of paediatrics and child health at St James' University Hospital in Leeds, and his CV runs to an impressive four pages. According to Batt, he is “the best known of the hawks of child abuse”. Batt says that one defence expert had a CV that ran to 62 pages, but he was not so commended by the court.
In the Clark case, Meadow argued that the deaths of the two babies, Christopher and Harry, were not natural, but he was only one of two out of the 14 experts who offered a cause of death.
What do you think are the chances of “an apparently normal solicitor, daughter of a policeman, married to a solicitor” murdering her new born baby? asks Batt. “How about 73 million to one?”
The Clark case has been provisionally accepted by the European Court of Human Rights at Strasbourg, and Batt is also preparing a number of different grounds for appeal for the Criminal Cases Review Commission.
The prosecution relied heavily upon the similar circumstances of the deaths of Christopher and Harry. They were close in age – seven and twelve weeks old – and they died at the same time of the evening when they were alone with their mother. The trial judge decided that it would be “an affront to common sense” if the two cases were not tried together.
Batt says: “In my view they would never have proceeded alone with the case of Christopher [the first-born], because the pathologist had said that he had died from natural causes. It was only when Harry died and he thought that he had seen haemorrhages in the retina that he decided to change the cause of death to smothering.”
But the defence team has since been contacted by a professor of genetics at Cambridge University who believes that those “startling” similarities, which the prosecution made so much of, are not sinister after all. Batt says: “In fact they're only a confirmation of what every medical student is told in their first year. You would expect similarities and if the deaths of these two babies were genetic, in other words natural, you would expect them to die at the same time, the same age and in the same way because it is a repeat pattern of what caused the first death.”
If the deaths were a tragic genetic accident, Batt contends that Clark's situation is far from unique. He believes that there are nine cot deaths a week, that a family will suffer the death of a second child under 12 years of age once a week from natural causes, and cot death every 12-14 months. Nonetheless, the medical profession is reluctant to acknowledge cot death. For example, in the US, the American Medical Association has issued instructions for all doctors to treat such deaths as suspicious until the contrary is proved. “It is a form of professional torture,” says Batt. “The profession that is dedicated to saving lives and ameliorating suffering is deliberately encouraging that suffering for mothers at the most awful time of their lives.”
Batt is aware of three more cases of mothers being charged with the murder of two babies. “The awful thing in Sally's case is that I don't think anybody did anything wrong,” he says. “I think that everybody did what they perceived to be the right thing professionally.”
Recently, Batt spoke alongside campaigning lawyers such as Michael Mansfield QC at a public meeting convened by lawyers working and campaigning in miscarriages of justice cases. Lawyers fear that the appeal courts are increasingly upholding wrongful convictions.
“The time has come to redefine what the Court of Appeal is truly about,” said Mansfield, who was speaking shortly after the controversial conviction of Barry George for the murder of TV presenter Jill Dando. “It shouldn't become a second jury second-guessing what the original jurors would have found.”
Batt is clear that this is exactly what happened in his client's case. “In its judgment, the Court of Appeal said that it was quite certain that the jury would have taken no notice of the statistic because it was a side show and you can't do that unless you put yourself in the minds of the jury.”
Clark's father is one of Batt's oldest friends so the lawyer has known his client since she was five years old. Batt volunteered his services as a watching brief at the trial, before representing Clark before the Solicitors' Disciplinary Tribunal in May, when, in an unprecedented ruling, they refused to strike her from the role despite her conviction for two murders.
“The problem with these cases is that they become all-consuming,” he says. “Hardly a day goes by when I don't receive a letter or a phone call that starts a new line of inquiry.” He visits his client in prison twice a month.
Batt says that he is “absolutely appalled” by what he has seen in Clark's and other cases. “It has so affected me personally, that whenever I see that someone has been convicted I wonder if they have been stitched up by the system as Sally was.”