Mother's ruin

On 9 November 1999, Sally Clark was left facing life imprisonment after being found guilty of murdering her two baby sons. Only on 29 January this year did her nightmare end when the Court of Appeal, at the second attempt, quashed her conviction and set her free.

With legal bills already totalling £2m and the prospect of an expensive compensation claim to come, just what went wrong with the judicial process, and how did the defence team overcome what, at times, seemed like insurmountable hurdles?

The trial<.b>

“For the first 20 months after the second baby died, Sally faced apparently uncontradictable evidence that she had shaken Harry to death,” says John Batt, a 73-year-old consultant and founding member of London firm Batt Holden, and an old friend of Clark's father. Batt has spent the last three and a half years working five to six hours a day as part of Clark's defence team.

The initial prognosis did not look good. Dr Alan Williams, the Home Office forensic pathologist, and Michael Green, professor of forensic pathology at Sheffield University, both concluded that Harry had suffered widespread retinal haemorrhages, meaning there could be no doubt that he had been shaken to death.

As a result, Green also changed his original cause of death for Clark's first baby, Christopher, from natural causes to death by smothering. “Sally was in the seemingly hopeless position of telling everybody she had never, ever shaken her adored son Harry; and yet there was this apparently damning evidence that she had,” says Batt.

It was not until three weeks before the trial began that Professor Luthert from Moorfields Eye Hospital looked at the slides and declared that there were no retinal haemorrhages, but Green strenuously disagreed with him and insisted that he could not have seen all the slides.

Clark's solicitor Michael Mackey, a partner at Manchester-based Burton Copeland, spent virtually the whole of the last two weeks before the trial trudging up and down the country trying to discover what had happened to each slide. Only on the very last day before the trial began did Green sign a statement that he was wrong about the retinal haemorrhages.

“At that point Julian Bevan QC [lead counsel for Clark] thought the prosecution would offer no evidence and the case wouldn't carry on. But Robin Spencer QC [lead counsel for the prosecution] wouldn't have it,” says Batt.

It was then that the statistic, that the chances of two cases of Sudden Infant Death Syndrome (Sids) occurring in a comfortably off family were one in 73 million, began to assume its vital significance.

The prosecution's star witness, Professor Sir Roy Meadow, produced the statistic from a draft report, 'Confidential Enquiries into Stillbirths and Infant Deaths' (Cesdi), the largest single study of cot deaths ever undertaken anywhere in the world, which studied 470,000 live births in five different areas of England over a three-year period.

“There's no doubt that the statistic [one in 73 million] appeared in that report in its draft form,” says Batt. “What Meadow didn't disclose was that further on in the report was the statement that, among the 350-odd cot deaths there had been, there were five that were second deaths in the same family. This gave odds of about 1:70, not 1:73m, as the chance of having a second cot death if you've had one. The chance of winning £10 on the lottery is one in 50 and it happens to 100,000 people every week,” he says.

In addition to the expert evidence, Williams continued to provide some assistance to the prosecution. Throughout the trial he insisted that there were retinal haemorrhages, although he changed his opinion to Harry having been smothered and/or shaken to death. It was not until after the trial, explains Batt, that the defence team discovered that Williams had got the retina muddled up with the choroid. “It's next door to the retina and is a very vascular vessel, and what he [Williams] was looking at were not the haemorrhages,” says Batt.

Coupled with this, the prosecution put forward certain inconsistencies that it argued pointed to Clark's guilt. “The point was made by Robin Spencer QC that everyone knew where they were when Kennedy was assassinated, but that, in my opinion, was the wrong question. Jackie Kennedy should have been asked what time her husband got up in the morning and what time he had breakfast, and if she gave the wrong answer some of today's child abuse experts would say that was a sign that she was implicated in his death,” argues Batt.

So by a majority verdict the jury convicted Clark. Belief that the verdict was the right one was heightened at sentencing, when Clark's alcohol problem was introduced by the prosecution. This, says Batt, is one of a number of deplorable tactics employed by the prosecution.

“Alcohol played no role in Sally Clark's trial because the judge ruled that there was no evidence that it played any part in the death of either Christopher or Harry,” insists Batt. “Nobody would have known that Sally Clark had an alcohol problem, mainly following the deaths of her babies and being charged with their murder, unless Robin Spencer QC at sentence had introduced it in order to maximise the bad publicity.”

Batt's argument is emphasised by Clare Montgomery QC in her skeleton argument for the second appeal: “The prosecution chose to introduce and emphasise at sentencing and at the first appeal the suggestion that Sally Clark was abusing alcohol. Not only was the evidence introduced without any defence opportunity to challenge it, but it also served no purpose other than ensuring maximum publicity (Judge Harrison having ruled that alcohol had played no part in the death of the children).”

Certainly, sections of the media leapt on the opportunity. On 10 November 1999, the Daily Mail ran with the headline: 'Driven by drink and despair the solicitor who killed her babies'. Incidentally, on 30 January 2003, the day after Clark's acquittal, its coverage was rather more measured: “In the aftermath of the trial Sally was portrayed as a 'lonely drunk' who missed her well-paid job as a solicitor and resented her children for keeping her at home.”

Court of Appeal, part one: what went wrong?

In July 2000, after a five-day hearing before Lord Justice Henry and Justices Bracewell and Richards, the Court of Appeal threw out Clark's appeal. Batt says now that, as soon as the first appeal hearing got underway, there were signs that things would not go their way, but that the defence team refused to see the signs.

“When we applied for leave [to appeal] we had a differently constituted court, and they gave Spencer a hard time and gave Bevan an easy ride,” Batt explains. “But by the time it got to the definitive hearing, those roles were reversed. They smiled on Spencer and gave Bevan a very hard time.

“They were hugely critical of Bevan for not having objected to the [one in 73 million] statistic. They said, as did in fact the court [at the second appeal], that it was incredible that it was ever allowed in evidence – it was clearly inadmissable. But Spencer said quite rightly last week that it was never objected to and, of course, the credibility of it as a ground of appeal issue is diminished if no objection is taken to it in the first instance.”

So if this was the case, then why didn't Bevan raise it? Batt will only say that Bevan did not object because he must have thought the figure was too ridiculous to be taken seriously. “The problem is the person who gave evidence,” he says. “If given by a schoolboy it wouldn't have mattered, but it was given by one of most experienced professional witnesses in the business. Meadow is amazingly convincing because he remained so reluctant to condemn.”

What the appeal judges were provided with was a report from two defence-appointed statisticians, which said that if 1:73m was right for two cot deaths, then the figure for two murders was 1:2.2bn. Unfortunately for the defence, the Court of Appeal chose to focus on the fact that the principle of rarity was accepted by both sides and allowed that to govern the court's determination that the statistics must have been a “sideshow”.

“The Court of Appeal in the first hearing was misled into believing that although 1:73m was wrong, the issue of rarity had been accepted by the defence. So exactly how many numbers there were in front of six noughts didn't really matter,” says Batt.

It was only at the second appeal hearing that the court accepted that rarity itself is a live issue and that, in fact, two cot deaths are not rare. “The court was told and accepted that the chance of two cot deaths are probably somewhere between one in a hundred and one in 400,” says Batt.

It was not until May 2001 that Clark, and her family and defence team, had some good news to shout about. Batt, who had never previously appeared before the Solicitors Disciplinary Tribunal, was tasked with making the case not to strike Clark, a convicted double murderer, off the solicitors' roll. The tribunal, in an unprecedented move, agreed and merely suspended her.

“That decision alone was the turning point in the entire case. Certainly in the media history of the event, that will be seen as the turning point,” says Batt. “The following day was a slow news day, so we got on the front page of The Daily Telegraph.”

Grounds for a second appeal

Another year passed before, in July 2002, the Criminal Cases Review Commission (CCRC) referred Clark's case back to the Court of Appeal.

Clark's husband Steven said at the time: “We're confident that compelling new evidence, which reveals a natural cause of death but which was withheld from the defence at the trial, will overturn the earlier false convictions, clear Sally's name and secure her release from prison.”

This new medical evidence was a laboratory report, not disclosed to the defence at the time of the original trial. It showed that Harry, the second baby to die, had lethal levels of bacterial infection in his body and died of natural causes, casting doubt on both convictions.

This medical report had taken two years of discovery and owed much to the perserverance of Marilyn Stowe, a partner with Leeds-based Graham Stowe Bateson, who had offered her services pro bono following Clark's conviction. She was tasked with getting Harry's medical notes out of Macclesfield Hospital – not a simple proposition.

“First of all, the hospital referred to the police to see whether it was obliged to hand them over, then to leading counsel to see if it was obliged to hand them over; and at one point Steve [Clark] was told that the two babies were dead and the mother was in prison for murdering them, so what possible reason could he have for wanting the notes,” recalls Batt.

The defence team had sought the reports because evidence emerged that carbon monoxide from a gas log fire could have played a role in the deaths of both babies.

Eventually Stowe's persistence paid off. On examination of the notes the crucial evidence that a microbiology report existed was discovered. In fact, the evidence had been there all along as had the microbiology report itself.

“On a photostat of one document that went to the Crown Court during the trial, there's clearly the top of the microbiology report, because the words microbiology report appear, partially masked by the documents on top of it. So we can say, beyond any question of doubt really, that that report that was not disclosed was actually present at the trial and should undoubtedly have been referred to,” says Batt triumphantly.

Before the second appeal, the defence team made one final significant change – they dropped lead counsel Bevan. “You can't back a loser more than twice,” says Batt on the team's decision to replace Bevan with Clare Montgomery QC. “It's not really a reflection on Julian Bevan QC, for whom I have a high regard, but I was surprised at his selection because he's best known as a prosecutor. There's no doubt that when the first appeal failed we needed some new thinking.

“Obviously we thought about all the lawyers involved, but had to have continuity and the huge reservoir of knowledge that there was in Mike Mackey – the decision to keep him was the right one. If we'd gone to somebody else we might not have got the result we did.”

Batt is quite happy to claim the credit for Montgomery's selection – not that you can go wrong with the real first lady of Matrix Chambers. “I used every friend I knew in the law to persuade her to do it, although I had no idea if I was pushing at an open or shut door,” admits Batt.

Despite Montgomery being only 10 minutes into her submissions and being asked by the Court of Appeal to present her case in an entirely different way, the second appeal was concluded successfully in half the allotted time.

“The Court of Appeal had to decide one central issue,” says Batt. “Was the cause of death now propounded by our experts a credible theory or entirely off the wall? Only if it was entirely off the wall would there be any doubt about quashing the conviction.

“The appeal was about half an hour or so old when one of the judges said to Clare Montgomery, 'Am I right in thinking that the jury at the trial asked two questions about whether any tests had been done for natural disease?' Yes. And he said, 'Am I right in thinking that the jury was given the wrong answer in both questions?' Yes. And then he said, 'Well, isn't that an end to the matter?' And Clare said yes,” explains Batt.

So the appeal could have been concluded after just 30 minutes. Again Batt condemns the prosecution's tactics, blaming it for dragging the case out for a further two days. “The case would have lasted four days if Robin Spencer QC had had his way,” argues Batt. “I am hugely critical of the way leading counsel for the Crown responded to this appeal. It must have been clear to him and to his junior, and to those instructing him, that two reports on which the CCRC had referred the case back were from respectable and eminent pathologists. They certified not only that an overwhelming bacterial infection was the cause of death of the second baby, but in the case of Dr Morris, he went so far as to say that 'no other cause of death is sustainable'.”

Batt's criticism is less a personal attack on Spencer than a fundamental objection to any involvement of the criminal justice system in cases such as Clark's.

In any event, after three and a half years in prison, Clark will not have been unduly put out by the two extra days it took Justices Kay, Holland and Hallett to quash her conviction and finally set her free.

Taking the law out of the equation

John Batt fervently believes that cases such as Sally Clark's should no longer be dealt with by the criminal justice system.
The miscarriage aspect of such cases is much more likely, he argues, because of their inherent characteristics. “Every mother who suffers a cot death believes she is responsible for it,” he says. “The sense of guilt is overpowering. At the slightest suggestion by police, doctors, health visitors or anybody else, she 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. Everything she said that could possibly be construed as a sign of guilt was.”
The strong likelihood of a conviction also means that the Crown Prosecution Service (CPS) and prosecuting counsel are keen to pursue such cases.
“[The CPS] has an incentive to bring a case because they can justify resources,” says Batt. “Leading and junior counsel know that securing a conviction for a double murder – and they're nearly all doubles, some are trebles, and there's one quadruple in the pipeline – will immensely enhance their career prospects, so there will be competition to take these cases.
“A leading silk many years ago said to me, 'Convicting the guilty is easy, but convicting the innocent takes real talent'. It's absolute rubbish in these cases; it's the other way around. You never get a chance to convict the guilty, because they plead guilty to infanticide and they don't even go to prison. The only ones that get to trial are the ones that deny it.”
Batt's solution is to follow Sweden's lead, where such cases are not dealt with by the criminal courts at all but by a panel of doctors from every possibly relevant discipline, who decide whether the mother did anything to harm the baby, and if so what her appropriate treatment is. “But also they decide if there's no evidence that the mother has harmed the baby, and they decide it empirically and not in an adversarial situation,” adds Batt.
He then points to a UK initiative by Professor Peter Fleming, which brings together all the relevant professionals – social services, police, coroner, doctors, pathologists – for case conferences to brainstorm what the real evidence in the case is, in the hope that they can eliminate cases such as Clark's.
“In my view, that should be universally adopted throughout the country,” he says. “It might even become the law of the land, because however much it costs, it's a fraction of the cost of prosecuting an innocent mother and a minute fraction of the cost of keeping her in prison for the rest of her life. It's the cheapest and most cost-effective way of avoiding future miscarriages of justice.”