When Experts Go Wrong

The Power Of The Expert Witness To Do Great Harm – The Case Of Sally Clark

The Expert Witness

The general rule of law is that opinions, beliefs and inferences of ordinary or lay witnesses are inadmissible in court. In the case of such witnesses the relevance and reliability of their opinion evidence is of concern but more importantly it is generally agreed that such opinion evidence usurps the function of the court to form its own opinion on the matter before it.
However, in our system of justice the expert witness is placed in a particular place of privilege. The expert witness is charged with the duty of assisting our judges and our juries to come to the right decisions in often complex and important matters. In doing so they are permitted to provide the court/jury with evidence of opinion based on their experience and skill. However, with such privilege there is also the ability to cause great harm and the power to undermine a system we all hope will serve us and protect us from harm.

The Sally Clark Case – The Facts

The post mortem following Christopher’s death was performed by Dr Williams who was a Consultant Histopathologist and Home Office Pathologist. His main area of practice was as a histopathologist but about 20% of his workload was forensic pathology. He was an accredited pathologist and did require to observe the Home Office Pathology Advisory Board for Forensic Pathology Practice Guidelines which set out standards which should be followed when conducting a post mortem.
In his post mortem report on Christopher’s death Dr Williams had concluded that Christopher had died of a lower respiratory tract infection as he had found evidence of infection in the lungs and the death was treated as a case of Sudden Infant Death Syndrome or (SIDS). The body was cremated but photographs were taken and the slides of the lungs were preserved.
In 1988 Harry died and Dr Williams also performed the post-mortem. He concluded that there was no evidence that Harry had died of acute infection or inflammation, or natural disease or cot death. He stated that there were spinal injuries and lesions in the brain and eyes and these injuries were of the type that would be expected from a non-accidental injury. In his view the pattern of injury was consistent with shaking. He originally stated that there was evidence to support the child was shaken on several occasions over several days.
As a result of his conclusion in Harry’s death Christopher’s case was reviewed by Dr Williams and he revised his opinion that death was as a result of a lower respiratory tract infection. His revised position was that Christopher’s death was unnatural and as a result of  non-accidental causes and the injuries were consistent with smothering.

Evidence At The Trial

Mrs Clark was charged with murder and after a lengthy trial at Chester Crown court in 1999 she was convicted of murdering both her children by a majority verdict of the jury.
At the trial the Crown relied upon evidence from Dr Williams, Professor Sir Roy Meadow, Emeritus Professor of Paediatrics and Child Health who had a specific interest in child abuse, Professor Green, Consultant Pathologist at the Home Office and Dr Keeling, Consultant Paediatric Pathologist. The defence also led a team of experts.
Dr Williams gave evidence at the trial that in the post mortem examination of Christopher he had found bruises and abraded bruises on the body and a small split and slight bruise in the frenulum. Originally he considered that these findings were consistent with minor harm caused during the resuscitation attempts. At the trial, he gave evidence that there were no convincing post-mortem features of a respiratory tract infection but advanced no real explanation for the alternation of his position from the initial post mortem. By the time of the trial it was said that Harry had been subject to a violent trauma to the spine and then had been smothered.

Appeal Against Conviction

An appeal against conviction was dismissed in 2002 (R v Clark (unreported). There were a number of grounds of appeal but the Appeal Court did accept that there were statistical errors in the evidence of Professor Sir Roy Meadows but concluded that did not affect the reliability of the conviction.

Omitted Evidence

What was unknown to all parties including the defence team at the trial and at the time of the first appeal was that during the course of the post−mortem examination swabs and samples from Harry’s faeces, stomach tissue and fluid, blood, lung tissue, bronchus, throat and cerebrospinal fluid (“CSF”) were taken by Dr Williams and he had submitted these for testing.
Staphylococcus Aureus bacteria was isolated in Harry’s stomach tissue and fluid, lungs, bronchus, throat and CSF.
The finding of the Staph Aureus bacteria in the lungs and cerebro-spinal fluid was noted to be abnormal. The samples were then sent to Withington Hospital in Manchester and the Central Public Health Laboratory in Colindale, London. Following review Dr Williams received a communication that it was unlikely that the organism contributed to the death but it could be there case that there was a transient or terminal bacteraemia.
The reports, and the microbiology and virology reports, were all in the possession of Dr Williams, who chose to exclude them from the hospital records of Harry and to exclude them from the papers that were disclosed prior to trial.
Dr Williams made no reference to these results or to the fact he had submitted these samples for examination in any of the three statements he made for the trial. Oral committal proceedings were held in the Magistrates Court before the case was sent for trial at the Crown Court. Dr Williams gave evidence at those proceedings. He did not mention in his evidence that these samples had been submitted for examination. His evidence was to the effect that there was no evidence of acute infection and no evidence that Harry died as a result of natural disease. The test results in relation to Christopher had been made available.
He also made no mention of them when other experts attended to meet with Dr Williams at Macclesfield Hospital, nor when Dr Williams attended the experts’ meeting. Counsel for the Crown Prosecution Service were unaware of the results. The jury at trial had asked why there was no analysis of Harry’s blood and proceeded on the basis that no sample was taken.
At the trial Dr Williams was asked whether there were samples and he said that there was no record of a sample from Harry that was taken either during resuscitation or immediately after that was subject to a chemical analysis.

Uncovering The Evidence

Mrs Clark’s husband and others could not accept that she had killed her children and they continued to investigate matters and in doing so they came upon these undisclosed tests. The tests were obtained and submitted for expert review and then disclosed to the Criminal Cases Review Commission who referred the case back to the Court of Appeal.

The Second Appeal

There was a second appeal (R v Clark [2003] EWCA Crim 1020) and in January 2003 the Court of Appeal considered that the convictions were unsafe and must be set aside. The Crown did not seek a retrial. This appeal was allowed on the ground that the verdicts were unsafe because of material non-disclosure by the Crown’s pathologist Dr Williams. The jury at the trial were unaware that Harry’s death could have been by natural causes. This had affected how the reviewed Christopher’s death. There was also reference to the statistical evidence given by Dr Meadow.

Asessment Of Dr Williams At The Second Appeal

The Court of Appeal considered whether Dr Williams had deliberately concealed information which he knew showed that Harry may have died from natural causes. If that was the case it was recognised that this would be conduct of the most serious kind. They concluded that Dr Williams genuinely believed after the death of Harry that both Harry and Christopher died from unnatural causes.
He was given the opportunity to offer an explanation to the Appeal Court for his apparent shortcomings and he declined to do so. He had previously stated that it was not his practice to refer to additional results in his report unless they were relevant to the cause of death. The court recognised that this practice ran the risk of a significant miscarriage of justice.
There was an overview of the pathology evidence by Professor Byard a Specialist Forensic Pathologist at the Forensic Science Centre in Adelaide, Australia, who has particular expertise in cases of sudden infant and childhood deaths.  His view was as follows:

“Unfortunately there appears to have been significant and ongoing problems in the investigation of these deaths. Standard protocols were not followed and essential steps such as routine dissection and histology were omitted which prevented verification of alleged autopsy findings. As well, a number of potentially important diagnoses and conclusions were altered over time…… the Clark brothers demonstrate difficulties that may arise if cases are not fully investigated with all of the results being clearly summarised and discussed in the autopsy report. Trying to clarify findings, diagnoses and circumstances of death at a later stage may simply not be feasible due to a wide variety of possibilities other than inflicted injury”

The court agreed with this comment and questioned whether it would have been possible to ascertain with certainty the cause of death in either or both cases if a greater degree of expertise had been demonstrated and care taken in the examination, recording of results and consideration of the options. It was concluded that it was impossible to say one way or another at this point in time.
They noted that if the microbiological results had been considered, as they should have been at the time, then it seems highly likely that further tests would have been carried out at the time. It was the fact that such tests could no longer be undertaken as a result of the failure by Dr Williams to disclose the information that lay at the heart of the Crown’s decision not to seek a re−trial in this case.

Professor Sir Roy Meadow

It was also contended again at the second appeal that statistical information given to the jury about the likelihood of two sudden and unexpected deaths of infants from natural causes had misled the jury and painted a picture which had greatly overstated the rarity of two such events happening in the same family.
Professor Meadow was asked about some statistical information as to the happening of two cot deaths within the same family, which at that time was about to be published in a report of the Confidential Enquiry into Sudden Death in Infancy entitled “Sudden Unexpected Deaths in Infancy”.

His analysis of the statistical evidence was flawed. Further the tables that were used did not take account of familial incidence factors not included in the table and it did say that where there was a second infant death in the same family it would be inappropriate to assume that maltreatment was always the cause.

GMC Complaint – Dr Williams

There was a GMC complaint against Dr Williams. The hearing before the Fitness to Practice Panel of the GMC extended over 32 days. Dr Williams was found guilty of serious professional misconduct, although he was absolved of any bad faith. He was permitted to continue to work as a Consultant Histopathologist but was not permitted to undertake any Home Office pathology or Coroner’s cases for a period of 3 years. One of the provisions was that the post mortem report must not omit properly considered conclusions which appear relevant and which may not appear to agree with the investigating team’s view of the case.
Dr Williams appealed against the finding (Dr Alan Williams v General Medical Council [2007] EWHC 2603 (Admin)). The argument advanced on his behalf was that he had been made a scapegoat. If Sally Clark had not received a fair trial this was due to a number of factors which included failings of many others and failings within the system. The appeal failed on every ground advanced.

GMC Complaint – Professor Sir Roy Meadow

There was also a GMC complaint against Professor Sir Roy Meadow. He appeared at the fitness to practice panel and subsequently there he appealed that decision and there was a later appeal by the GMC. (Meadow v General Medical Council [2006] EWCA Civ 1390). In the appeal Sir Anthony Clark MR stated:

“It is of the utmost importance that an expert should only give evidence of opinion which is within his particular expertise and that, where any statement is made in writing or orally is outside his expertise, he should expressly say so.”

Conclusion

In February 2004 Clare Montgomery QC addressing the British Academy of Forensic Sciences said:

“Sally Clark has not killed her sons, they were not murdered….This grotesque miscarriage of justice was the result of flawed evidence given by forensic scientists.”

Whatever stance is taken in this case there is no doubt that justice was not served as a result of the actions of some of the experts who gave evidence in this case. On one view Sally Clark went to prison for a crime she didn’t commit and her remaining son was deprived of his mother. Her husband was deprived of his wife and her career as a Solicitor was effectively over by the time she was released. Some people attribute her early death to all she had been through.
However, Dr Williams also failed Harry and Christopher in that his task was to perform a post mortem to attempt to identify the cause of death, and by his actions and failures a full and proper investigation of the cause of their death was not done and could never subsequently be done.

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