The Leader Column

The law doesn't work. Well, it didn't for Sally Clark, but now the dust has settled on her successful second appeal, it's time to ask whether such cases should reach our courts again.

Clark has endured a terrible miscarriage of justice; spending three and a half years in prison, separated from her husband and surviving child and unable to grieve the loss of her two sons. The trial itself is estimated to have cost £2m, and the Government now faces the potential of an expensive compensation claim.

Then there are the dozen or more mothers in similar situations, either facing prosecution or already convicted.

But the Crown Prosecution Service is keen to pursue a prosecution in these cases because conviction rates are so high. “The sense of guilt is overpowering. At the slightest suggestion by police, doctors, health visitors or anybody else, a mother will put up her hands and say, 'Of course it's my fault'. Ambitious prosecutors can turn that very swiftly into damning circumstantial evidence of guilt, and exactly that happened in Sally's case,” argues solicitor John Batt, a leading member of Clark's defence team.

Medical experts can also become caught up in the adversarial process, keen to further the arguments of their employers, not least because they can earn up to £1,000 a day, guilty of promulgating medical certainties where there aren't any.

So what's the alternative? In Sweden, such cases are dealt with by a panel of doctors. They decide whether the mother harmed the baby and any appropriate treatment.

A radical solution, but one that might equally be applicable in other areas of our criminal justice system. Interviewed in The Guardian last week, David Turner QC, counsel for Robert Thompson, one of the two boys convicted of murdering James Bulger, argued that the English adversarial process is inappropriate for such young children. “In other countries, social and psychiatric experts would have become immediately involved, rather than lawyers,” he said.

Batt argues fervently for the expansion of an existing UK initiative by Professor Peter Fleming, which brings all relevant professionals – doctors, police, pathologists, paediatricians – together for a case conference.

The initiative offers a cost-effective solution, and would require no legislation, simply encouragement from the Government. But most of all, it could perhaps eliminate any repeat of the terrible miscarriage of justice endured by Clark.

(See next week's edition of The Lawyer for an exclusive interview with Clark's lawyer John Batt.)