Mother’s ruin

How did the miscarriage of justice on wrongly convicted child murderer Sally Clark happen? Matheu Swallow gets the lowdown from her lead defender John Batt and asks: are the courts out of their depth in such cases?

On 9 November 1999, Sally Clark was 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

“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 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.

Three weeks before the trial began, Professor Luthert from Moorfields Eye Hospital examined the slides and said 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 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 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 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, which studied 470,000 live births in five different areas of England over a three-year period.

“There’s no doubt that the statistic 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 ú10 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 insist 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 Williams was looking at were not the haemorrhages,” says Batt.

Coupled with this, the prosecution said certain inconsistencies 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.

‘Ambitious prosecutors can turn [a mother’s perceived guilt] very swiftly into damning circumstantial evidence of guilt, and exactly that happened in Sally’s case’
John Batt, Batt Holden

So by a majority verdict the jury convicted Clark. At sentencing, Clark’s alcohol problem was introduced by the prosecution. This, says Batt, was a deplorable tactic. “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.”

Court of Appeal, part 1: what went wrong?

In July 2000, 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 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 that it was incredible that it was ever allowed in evidence. 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.”

The appeal judges were provided with 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. “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, in fact, two cot deaths are not rare. “The court 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 had some good news. Batt, who had never previously appeared before the Solicitors Disciplinary Tribunal, was tasked with making the case not to strike Clark 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,” 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.”
This new medical evidence was a laboratory report, not disclosed to the defence at the time of the original trial. It showed that Harry had lethal levels of bacterial infection in his body and died of natural causes, casting doubt on both convictions.

The discovery of the medical report had taken two years and owed much to the perserverance of Marilyn Stowe, a partner with Graham Stowe Bateson, who offered her services pro bono following Clark’s conviction. She was tasked with getting Harry’s medical notes out of Macclesfield Hospital.
“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,” says Batt.

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

Eventually Stowe’s persistence paid off. On examination of the notes it was discovered that a microbiology report existed. “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.

Before the second appeal, the defence team 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 of Matrix Chambers. “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.”

“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. “I am hugely critical of the way leading counsel for the Crown responded to this appeal” says Batt. “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’.”

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 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 circum-stantial 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 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, where such cases are not dealt with by a panel of doctors 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 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.

“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.”