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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Clark, R v [2000] EWCA Crim 54 (2nd October, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/54.html Cite as: [2000] EWCA Crim 54, [2000] All ER (D) 1219

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CLARK, R v. [2000] EWCA Crim 54 (2nd October, 2000)

Case No: 1999/07495/Y3
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 2nd October 2000

106. 106. That table appears as Table 3.58 in the final published report. A number of points arise from it. First, as appears from the text of the Notice of Additional Evidence, the Crown assumed that the defence experts would be contending that these deaths were SIDS deaths. But after the cross-examination of Professor Berry (10th day of evidence, 26th October), the defence doctors were to agree that neither of these deaths was a SIDS death because of the suspicious circumstances surrounding them. Second, the table gives rise for the first time to the 1:73 million statistic - see the explanatory paragraphs in the published version. For convenience, we put all the paragraphs relating to the Table (now numbered 3.58) together:
"Infants and families at risk
Overall, in the population included in this Study the SIDS rate was 0.768 per 1,000 live births, ie approximately one baby in 1,300 died as SIDS. From our data, it is possible to identify within the population a number of factors which are associated with an increased risk of SIDS. The identification of families at higher risk of SIDS is of importance in allowing the appropriate deployment of scarce health care resources, and in attempting to achieve changes in life style or patterns of child care that might reduce this risk. For families already at low risk, knowledge of the factors influencing risk may help to provide reassurance and encouragement in continuing appropriate patterns of care.
Table 3.58 shows the three prenatal factors with the highest predictive value (based on the Wald Score) of an increased risk of SIDS, and the likely effect of the presence or absence of each factor on the incidence of SIDS, along with the effect of combing those factors. [NB: we reproduce this paragraph in the final form in the Report, which the appellant's statisticians had, and not as originally delivered (in draft) to the defence, for which see Prosecution Appeal Bundle, p130.]
Thus, an infant living in a household in which nobody smoked had a risk of SIDS of around one in 5,000, whilst if anyone in the household smoked this risk rose to around one in 700. Similarly for an infant in a household in which there was no waged income, the risk was around one in 500, compared with one in 2,000 if there was a waged income.
The correlation between the factors was taken into account when more than one factor was used to calculate the rate, but because all three factors are independently significant in the multivariate analyses, the presence of more than one will have an increased effect.
Thus, it can be seen that for infants in families in which all three factors [ie, someone smokes in the household, there is waged income in the household, and the mother is 26 or under] are present the risk of SIDS was one in 214, compared with a risk of one in 8,543 for infants in families with none of the factors, ie a 40-fold difference in risk.
Since the factors will generally remain the same (with the possible exception of maternal age below 27 years) the risk of SIDS to a subsequent child in a family in which one infant has already died will range from one in 214 to one on 8,543. this does not take account of possible familial incidence of factors other than those included in Table 3.58.
For a family with none of these three factors, the risk of two infants dying as SIDS by chance alone will thus be one in (8,543 x 8,543), ie approximately one in 73 million. For a family with all three factors, the risk will be one in (214 x 214), ie approximately one in 46,000. Thus, for families with several known risk factors for SIDS, a second SIDS death, whilst uncommon, is 1,600 times more likely than for families with no such factors. Where additional adverse factors are present, the recurrence risk would correspondingly be greater still."
107. As we believe to be plain from the text, that figure went to show how unlikely it was that a family with two children complying with the profile criteria would suffer one or two cot SIDS.
The trial
108. Mr Spencer, for the Crown, in opening the case, said:
"One must always approach statistics with caution, but Professor Meadow has worked out the probability of there being two genuine unexplained natural deaths (SIDS) in a family such as this where material standards are high, the mother is over 26 years old and neither parent smokes. The chances of one genuine unexplained natural death in such a family are about 1 in 8,500. The chances of two genuine unexplained natural deaths in such a family are about 1 in 73 million."
109. There he dealt with the question of the rarity of genuine SIDS, which was a live issue. He returned to the question of whether, in all the circumstances, these could possibly be SIDS. "You don't find these sorts of recent unexplained injuries in a true case of SIDS".
110. The draft opening had been supplied to the defence. No complaint was made as to the inclusion of any of the relevant passages. The case proceeded on the basis that there would be an issue as to whether these were genuine unexplained natural deaths. In fact, as the expert witnesses called for the defence did not support the proposition that the deaths were SIDS, the actual issue was whether the Crown could satisfy the jury that neither death was natural, so that the jury could safely infer that each death was unnatural. No objection was taken to the Crown's case being opened in that way.
111. We then come to Professor Meadow's evidence. The importance of his evidence was: first, his identification of recurrent features commonly associated with unnatural infant death (eg episodes of unusual illness, inconsistent accounts by the parent of circumstances leading to death, the time of death (when mothers are under great stress), cases where the infant had just had a normal feed, cases where there are signs of overt physical abuse not directly causative of death); second, the seven similarities identified between the two deaths; and third, his identification of the physical findings on the bodies of these infants on which the Crown based their case. He dealt first with the case of Christopher (pp 12 to 25) and then with Harry (pp 25 to 32). Each summary concluded with his evidence that he could not think of any natural explanation for either death. That was the important part of his evidence.
112. Then he turned to the statistics (pp 32 - 39 of his evidence in chief). He prefaced his remarks with the need to approach statistics with caution, and then went on to describe the CESDI Study: a multi-disciplinary research study, government-supported, well -conducted: ... "it's the most reliable Study and easily the largest and in that sense the latest and the best." The Crown make the point that an expert medical witness, asked to give his opinion on the rarity of a medical condition can speak not only of his own experience, but also of what there is in the literature, including statistics. We agree with that submission. Objection may conceivably be taken that the statistics have to be proved, starting with the basic data, but absent any such objection (and none was taken here) the expert can rely on an up-to-date reputable study such as the CESDI SUDI Study.
113. That Study calculated the likelihood "... of a baby dying, and being labelled as sudden infant death syndrome" (a reference to the fact that that has been a registrable cause of death since 1971). The table reproduced above at paragraph 121 was put before the jury and explained to them. Professor Meadow was asked, in examination in chief:
"Q Just before we look at the figures, does this leave out of the equation deaths which showed suspicious features in any event?
A Yes, ... they did not include babies whose deaths were being investigated by the police or were the subject of a coroner's `not ascertained', or it was thought to be ... murder or harm to the child. So these are babies that died suddenly and unexpectedly. The starting position was that these deaths were thought to be natural deaths."
114. Then having gone through the table, there was the following exchange:
"Q Later on in the paper does it go on to work out the risk of two infants dying of SIDS in that family by chance alone?
A Yes, you have to multiply one in 8,543 times 1 in 8,543 and I think it gives that in the penultimate paragraph, its points out that it's approximately a chance of 1 in 73 million .... It gives a chance of 1 in 73 million live births and in England, Wales and Scotland there are about, say, 700,000 live births a year, so it is saying by chance that happening will occur once every hundred years."
115. We have seen that the genesis of the 1:73 million figure was the CESDI Study, and not any individual calculation made by Professor Meadow. The grace note was that this would occur "... once in a hundred years". This evidence was given by Professor Meadow in examination in chief on the sixth day of the Crown evidence. While the "100 years" answer was new to the case, it was a straight mathematical calculation to anyone who knew that the birthrate over England, Scotland and Wales was approximately 700,000 a year. Mr Bevan submits that this answer must have greatly affected the jury. He suggested that its impact would have been "overwhelming". But he did not suggest the effect was such that the judge should have discharged the jury, and he did not so apply. Nor did the defence invite the judge to direct the jury to ignore the evidence relating to Table 3.58 of the Study, nor to give any special direction in relation to it.
116. Professor Meadow was then asked whether Christopher's death and Harry's death would have been included in the Study. Professor Meadow replied:
"They'd only be included if the pathologist had described them under the label Sudden Infant Death Syndrome, and I think with their findings at autopsy, fractures, bruises and things, they would not have described them as Sudden Infant Death Syndrome so they wouldn't have been .... I think these two cases would probably have been likely to have been excluded from the Study."
117. Counsel then went on:
"Q Until this study was done and these figures were calculated was there a much lesser figure which didn't take account of these particular household features, smoking, age, wage earning and so on?
A Well in general if someone asks me what the risks of two babies within a family dying and being labelled as SIDS I would just say one in a thousand or 1,300 times 1 in 1,300. I'd just give the global rate but you then ... have to take into account as this paper has done and you have to in all individual cases of the circumstances. In other words, in a family where there's no wage earner, where they smoke, where it's a young mother, the chance of a sudden natural death is very, very much greater than the chance in a professional family, non-smokers and of a mature age."
118. He was then questioned about the study Professor Emery had played a part in, published in a paper called Recurrence of Unexpected Infant Death. This witness agreed that this was, in this country, the only other study of any scale on the recurrence of infant death within a family. The starting point for this study was families in which two or more infants had died suddenly and unexpectedly. The report starts:
"In England and Wales an estimated 50 families a year experience a second unexpected infant death."
119. What that report showed was summarised by Professor Meadow:
"It was addressing a different issue. The research workers investigating families in which two or more children had died suddenly and unexpectedly, and they went back over all the records and had multi-disciplinary meetings and researched them very carefully to see if they could elucidate better the reasons for those deaths. They had in all 57 deaths to investigate in 24 families, most of families with two deaths. They couldn't get material on all of them but they were mainly two death families. Of those 57 deaths they, on more detailed and modern investigation were able to find a natural cause, that's a disease cause or a genuine accident for 30% of the cases, so their point there was saying nearly a third of those cases should never have been labelled as SIDS, they should have been identified as either a natural accident or a natural disease. Fifty-five percent of the cases they ended up by saying this child had been killed by the parents, and that was not observed first time around. In five percent of the cases they came to no conclusion, and in nine percent, that was in five children they ended up saying: `I don't know what the matter is, we too would use the label SIDS'. So they ended up with five children where they couldn't decide upon a likely cause. They point out in their article that of all the families involved, 24 families, it was only in one family where there were two children who had died and in their opinion were completely unexplained ... in other words SIDS."
120. The points he made on this topic in his evidence in chief were to tell the jury of the nature of the CESDI Study, and to explain the calculations leading to the figure of 1:73 million, to confirm that the cases of Christopher and Harry would not be included because of the physical findings at autopsy; and that the CESDI Study was not undermined by the Recurrence of Unexpected Infant Death Study, as they dealt with different issues.
121. Professor Meadow's examination in chief concluded in this way:
"Q Finally, coming back to these two babies, in your opinion, Professor, could either of these two deaths be classified as SIDS, Christopher and Harry.
A No.
Q Can you think of a natural explanation for either death?
A No.
Q In your opinion did Christopher die a natural death?
A No.
Q In your opinion did Harry die a natural death?
A No."
122. Mr Bevan QC for the defence then cross-examined. He cross-examined the witness from the Care of Next Infant (CONI) Report, published in 1998. The point of the cross-examination (20th October pp 63 - 65) was to suggest that there were more families with two SIDS deaths than the CESDI Study figures suggested. Professor Meadow's response was that CONI's figures were not scientifically valid. Counsel put:
"Q It's a bit like a coin isn't it? If you flip a coin heads or tails, yes?
A Yes.
Q It's the same odds each time isn't it, one to one?
A Yes ... This is why you take what's happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million. You know I mean ...
Q That's a double death every hundred years?
A I know, but I mean ... you have to say two unlikely events have happened and together it's very, very, very unlikely."
The defence called Professor Berry on Day 10 of the evidence. He was one of the four editors of the CESDI Study (though we were told this was more honorific than executive). He is a professor of Paediatric Pathology at Bristol University and a consultant paediatric pathologist to the Bristol Hospital for Sick Children since 1983. He gave evidence under cross-examination that he would not classify either of the deaths as SIDS, as the unexplained factors in both caused him concern (eg the injuries to the children were not sufficiently explained). He agreed that two SIDS deaths in one family would be "... unusual, but not very unusual ...", but "... we are talking about statistics here which generally speaking are not of great value in the individual case." This last point the judge came back to in his cautionary direction to the jury (see paragraph 145). He made the point that that he did not believe that statistics enables you to determine whether the death was natural. He agreed that SIDS did not usually repeat in families. While he accepted the 1 in 8,543 statistic in relation to the first SIDS death in low risk families, because this was an observed figure, he considered the squaring of that figure to calculate the risks of a second SIDS death to be an illegitimate oversimplification which a sentence of the Study warned against:
"This does not take account of possible familial incidence of factors other than those included in the Table." (see paragraph 122 above, the last sentence of the last paragraph quoted).
123. He continued:
"There may be familial diseases which we are not clever enough to recognise but there may be other familial factors that predispose that family, for reasons we don't understand, to a second death. So this Study, this is a theoretical calculation. It is not the result of observation ... [but of] multiplying those figures together ... when you go out and look for families who have had ... second SIDS .... they are commoner than you would expect from this type of calculation."
124. The judge was specifically to remind the jury of this evidence that the risks were inherently greater in a family which had already had a SIDS death. The judge squarely left the issue to them, for them to decide. The defence put no specific figure on the probability of a second SIDS death in one family.
125. That then was the issue on the statistical evidence given in the trial. It was accepted by Professor Berry that to have two genuine SIDS deaths in the family was "unusual", and it seems to have been accepted that the higher risk families were those where someone smoked, where no-one was wage earning and the mother was 26 or under, and the lowest risk was for families such as the Clarks where the reverse of the above three factors applied. That should not have surprised anyone as the CESDI Study refers to international research and refers to (Chapter 1, page 4) "... a similar epidemiological profile ..." of high risk families in many foreign countries.
126. While to deal properly with this ground of appeal in its context in the trial it has necessary to consider the evidence and issues in detail, it was very much a side-show at trial. The experts were debating the incidence of genuine SIDS (unexplained deaths with no suspicious circumstances) in a case where both sides agreed that neither Christopher's death nor Harry's death qualified as such.
127. Just as the statistics had formed only a small part of the trial, they were only a small part of the summing-up. The main passage where the judge dealt with it introduced it on Day 2 of the summing-up, 37C to 39E. We quote it in its entirety for completeness:
"Well that, members of the jury, leads me to the conclusions of the various medical experts. I start with Sir Roy Meadow and I start with him on purpose because there was an aspect of his evidence which is not strictly speaking a conclusion but which is most conveniently dealt with at this stage. What I refer to is his statistical evidence because you may remember he dealt with statistics relating to two SIDS death occurring in one family.
His figures were derived from a recent and very thorough research study, Government funded report, call CESDI. You have, members of the jury, a table containing those statistics in section 8 of the folder. In short, in a case were nobody smokes in the household and there is at least one waged income in the household and the mother is more than 26 years old, the probability of one SIDS death in the family is 1 in 8,543 and the probability of two SIDS in the same family is 1 in 73 million live births. That means there is a chance of two SIDS in the same family happening one every hundred years. In addition to that, in these two cases, there are features which are suspicious in any event. So that was the evidence that he gave in evidence in chief about those statistics.
In cross-examination figures from a report by CONI - Care of the Next Infant programme - which was published in October 1998 were put to Sir Roy Meadow. In that report, 8 [deaths] out of [5,000] babies in their programme were treated as true cot deaths after confidential enquiries. ... It was suggested that using the three high risk factors in the table from the CESDI Study, the risk of a SIDS death would be 1 in 214 which would be a risk of a double death of 1 in 46,000, and applying that correlating it to the figure of 5,000 babies, the risk it was put at that time would be 72 in every 46,000. I think Mr Bevan in his final submissions referred to a figure of 54 rather than 72 but the point still remains the same.
Sir Roy Meadow's response to this was that that was not a valid way of assessing the evidence. The CONI report was nothing like the same standard of the CESDI report, he said, and the research was not scientifically valid. He said that it does not have any value statistically and cannot be compared to the CESDI Study."
128. The judge then gave the jury a cautionary direction as to their use of statistics:
"I should I think members of the jury just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family it does not mean that there cannot be another one in the same family. That part of the evidence relating to statistics is nothing more than that. It is a part of the evidence for you to consider. Although it may be part of the evidence to which you attach some significance, it is of course necessary for you to have regard to the individual circumstances relating to each of these two deaths before you reach your conclusion on the two counts on this indictment.
Having said that, members of the jury, I turn then to what truly were the conclusions of the relevant experts relating to Harry. The first one is Sir Roy Meadow and his conclusion was that Harry's death could not be classified as a SIDS death and in his opinion Harry did not die a natural death. He also said that the further information that he had received since he made his witness statement in June 1998 sadly increased the strength with which he felt that these two deaths were not natural."
129. The judge said of Professor Berry's evidence (Day 2, p 73):
"He said that he would not classify either of these deaths at SIDS deaths because they have features which are not typical of SIDS deaths. Both deaths, he said, gave him considerable concern. He thought the timing of the deaths was unusual but not very unusual for a SIDS death.
So far as the statistics are concerned relating to the likelihood of there being two SIDS deaths in one family, that figure of 1 in 73 million, he thought it was wrong to multiply the two figures of 1 in 8,543 together because if there was one SIDS in the family, then there maybe other factors present in the family which might make it more likely that another death would occur."
130. The judge then, on the last day of his summing-up, summarised how both sides put their cases. Dealing first with how the Crown put their case, he reminded the jury that the main issue was whether the defendant had done it. Neither death could be considered a SIDS death because of the existence of the recent and old injuries that were found in each case. The defendant and her husband had not been truthful, she had lied as to Harry's position in the bouncy chair, he had lied as to the time he got back from the office on the night of Harry's death, lying out of blind loyalty to her. She was getting tired, he was late, and going to Glasgow the next day. He then set out (as we have heard) the important findings of Dr Williams which had been confirmed, the seven findings, showing that Harry must have been the subject of shaking or some violent movement. As to Christopher, his nosebleed was consistent with prior attempted smothering (haemosiderosis was a non-starter) and his torn frenulum diagnostic of deliberately inflicted injuries indicating abuse shortly before death, consistent with smothering. Then there were the bruises, and the fresh bleeding in the lungs, the significance of which Dr Keeling had dealt with.
131. He then concluded his summary of the Crown case with this passage:
"It was therefore submitted by the prosecution all of those finding on their own were ... too powerful to amount to anything else but a deliberate killing of Christopher. All Professor Meadow's features for an unnatural death rather than a SIDS death were applicable in the case of these two babies, it was submitted by the prosecution, namely previous unusual episodes, inconsistent accounts between parents, both events had happened in the evening, both babies had just taken a feed, and there was, say the prosecution, smothering combined with some other form of abuse. Professor Meadow's opinion you were reminded was that neither death was natural.
Reliance was also placed by the prosecution on the statistics mentioned by Professor Meadow for the probability of two SIDS deaths within the family, namely one in 73 million and even longer odds, it was said, if you take into account the existence of the old and fresh injuries, and reliance was also placed on the seven similarities between the two deaths which I mentioned to you early in my summing up, and which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths."
132. He then summarised the defence case over five pages, culminating with a matching passage in relation to the statistics:
"So far as the statistics are concerned relating to the possibility of 2 SIDS deaths in one family, reliance was placed on the CONI figures, those were the figures which Professor Meadow had dismissed in his evidence, and reliance was also placed on Professor Berry's point that the risks were inherently greater in any event in a family which had already had a SIDS death.
You were told, quite correctly, that what you must not do is to conclude that if the defendant killed one baby she must have killed the other. That would be quite wrong. It was suggested that the only safe approach was to look at the death of each child independently and only if you reach the conclusion that the defendant killed one child should you ask yourselves whether that helps you in relation to the other child.
It was submitted that you cannot say with any degree of certainty that the defendant deliberately killed either of these children. She had done nothing untoward to either child and whilst there may be suspicious features, the prosecution have not proved this case so that you can be sure that she had killed either of them. Well, members of the jury, that is I hope a reasonably fair summary of the way in which both sides put their cases to you."
133. The appeal
It was against that evidential background that the Full Court gave leave to the defence to adduce expert statistical evidence. It made clear that it did so having "... no preconceived view of the likelihood of the evidence being accepted ..." and granted leave: "without prejudice to any matter which the subsequent Court may decide."
134. It was clearly both sensible and expedient for the Full Court to deal with those questions as they did.
135. The evidence adduced by the appellant consists of reports by Dr Evett, a chartered statistician and member of the Forensic Science Service who specialises in the application of probability theory and statistics to the interpretation of scientific evidence; and by Professor Dawid, Professor of Statistics at the Department of Statistical Science, University College, London. No additional evidence has been put in by the Crown.
136. Because of pressure of time and the limited utility of what would have been necessarily argumentative cross-examination of the statisticians, we took the defence new evidence (from Doctor Evett and Professor Dawid) as read, and with the agreement of the parties tested that evidence by the submissions made on each side, and did not require the statisticians to give evidence.
137. Mr Bevan submits that there were serious errors of approach towards the statistical material at trial, both in evidence and in the Crown submissions and in the judge's summing-up. He contends that the errors were highly significant since the statistics - in particular, the figures of 1:73 million or once in 100 years - had a "devastating" impact on the jury. Mr Bevan accepts that he did not complain at the time. He did not object to the opening of the evidence or to the admission of the evidence or to the passages in counsel's speeches or the judge's summing-up of which complaint is now made. His eyes were opened by the evidence received after trial from the experts now called on behalf of the appellant. But on such an issue, he submits, the appellant should not be prejudiced by counsel's failings at trial.
138. As to Ground 3(a), Professor Dawid's first criticism relates to the calculation of the figure of 1 in 73 million. He concedes that the CESDI Study appeared to have been carefully planned and executed. But he says the report did not contain sufficient detail or transparency and he concludes:
"Whereas such methods may be appropriate for suggesting broad general hypotheses about the relationship between the outcome studied (here SIDS) and possible explanatory factors, it can be very misleading to use them to construct precise numerical formulae for predictive or explanatory purposes."
He also raises the question of the appropriateness of the calculation to the specific case of Sally Clark, and whether it should not have had built in all her individual characteristics. None of those matters, however, provides great assistance to the appellant's case, since the Crown was using the CESDI Study not for its precise figures but for a very broad point, namely the rarity of a double SIDS.
139. Professor Dawid goes on to question the appropriateness of squaring 1 in 8,543 in order to produce the figure of 1 in 73 million. He notes the fact that the relevant table:
"... does not take account of possible familial incidence of factors" [see paragraph 122 and the penultimate quoted sub-paragraph]
and emphasises the possibility that there might be factors predisposing a family with one cot death to another. He suggests, not unreasonably, that the 1:73 million must be regarded as a "ball park" estimate. We do not imagine that the Crown would demur from that suggestion. In any event it is common ground, we believe, that the statistical justification for squaring exists only where the risk of a single SIDS death in a family that has already had a SIDS death is the same as the chance of a single SIDS death in a family that has not previously suffered one. The existence of arguments against squaring was known to the jury at the trial. Professor Berry made the points to which we have already referred, and the judge reminded the jury about these in his summing-up. But again the precise figures are not important, since the Crown was making the broad point that repeat SIDS deaths were very unusual, in which exercise the number of noughts separating the lower risk households from higher risk households did not matter once the overall point was made, as here it was.
140. Similar points apply to the brief observations made by Dr Evett on the method of calculation of 1 in 73 million. Dr Evett makes two points on this. He accepts the statistical validity of the assumption justifying the squaring, but states that the Study does not show the supporting evidence for that assumption, and "In the absence of such evidence the calculation is invalid". He also complains that the appellant's alcoholism and depression were not taken into account. That point was presumably taken in ignorance of the fact that the defence had successfully applied for the evidence of Mrs Clark's alcoholism not to be taken into account, as there was no evidence that she was under the influence at the time of the children's deaths. No specific submissions were made to us on the question of depression.
141. He also makes the obvious point that the evidential material in Table 3.58 tells us nothing whatsoever as to the guilt or innocence of the appellant.
142. Thus we do not think that the matters raised under Ground 3(a) are capable of affecting the safety of the convictions. They do not undermine what was put before the jury or cast a fundamentally different light on it. Even if they had been raised at trial, the most that could be expected to have resulted would be a direction to the jury that the issue was the broad one of rarity, to which the precise degree of probability was unnecessary.
143. As to Ground 3(b), objection is taken to the alleged reliance by Professor Meadow on the statistical evidence in expressing his view that the deaths were unnatural (see the transcript of his evidence at paragraph 137 hereof). No objection is taken to his reaching that conclusion on the medical and circumstantial evidence. But in R v. Doheny and Adams [1997] Cr App R 369 a number of observations were made about the role of the expert in cases involving DNA evidence, stressing the limits of the evidence that the forensic scientist can properly give (which will include evidence about the number of people with matching characteristics who are likely to be found in the United Kingdom or in a more limited relevant sub-group). The court stated (at 374G):
"The scientist should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion."
144. It is unnecessary to examine in greater detail the history of the common law rule that expert witnesses should not give opinion evidence on the "ultimate issue" which the court has to decide. Suffice it to say that in our judgment Professor Meadow did not overstep the line between the expert's role and the task of the jury when he gave it as his opinion that Christopher and Harry did not die natural deaths. Mr Bevan's submission proceeds on the basis that Professor Meadow's opinion was founded both on the medical and circumstantial evidence and on the statistical evidence, and that it was in founding himself on the statistical evidence that Professor Meadow fell into error. In our judgment, however, Professor Meadow's opinion was based on his expert assessment of the medical and circumstantial evidence, not on the statistical material. Most of his examination in chief was concerned with the medical issues. He nowhere suggests that Table 3.58 (which did not deal with deaths such as these) provides any evidence that these deaths were unnatural, only that true SIDS were rare. No-one would know better than Professor Meadow that the important evidence as to whether these deaths were unnatural lay in the physical finding port-mortem, in the account of the last hours of the infants, and in the evidence and credibility of the parents - it certainly did not lie in the statistics. And it is clear from reading his evidence that his conclusion was firmly based on that medical and circumstantial evidence, as one would expect. He then dealt briefly with the statistical material towards the end of the examination in chief, before being brought back in conclusion to "these two babies" for the purpose of expressing an opinion on whether the deaths were natural or not. As we read the transcript, that involved a move away from the subject of statistics and back to the medical and circumstantial evidence relating specifically to Christopher and Harry.
145. For that reason we reject Ground 3(b). But there remains the separate question whether Professor Meadow's statistical evidence and the way in which it was dealt with at the trial involved an "... error of approach" as counsel for the appellant describes it.
146. For convenience we repeat Ground 3(c) of the Grounds of Appeal:
"The learned judge failed to warn the jury against the `prosecutor's fallacy' as referred to in R -v- Deen, The Times, 10th January 1994. To the contrary, the learned trial judge appeared to endorse the prosecutor's erroneous approach."
147. We say by way of introduction that we find the forensic history of this point curious and untidy, because the introduction and use of statistics was never canvassed with the judge at any stage. It seems to us obvious, as we have already stated, that the evidential value of the contents of Table 3.58 tells us nothing whatsoever as to the guilt or innocence of the appellant. It would simply have told all within the relevant category of the population that their risk of having unexplained infant deaths with no suspicious circumstances is very small.
148. So far as we are aware, the judge was never referred to the prosecutor's fallacy, nor was any objection taken to the admission of any evidence at trial. (For the "prosecutor's fallacy" reference can be made to R -v- Doheny & Adams [1997] 1 Cr App R 369, at 372-373.)
149. The complaint is now made as to the admission as evidence of Table 3.58 and its contents in relation to the chances of any family (sharing the broad characteristics of the Clarks) having a first and then a second unexplained infant death with no suspicious circumstances being very rare: 1 in 8,543 for the first, and 1 in 73 million for the second. The rarity of such events was not seriously disputed at trial, though there was evidence, fairly summed-up to the jury, that the table overstated the rarity of a second SIDS death in one family.
150. That evidence was clearly relevant and admissible for the reasons set out above.
151. The complaint is now made that the prosecution reversed the evidence in Table 3.58 eventually using it to suggest that
"... the odds of the defendant being innocent are greater than 73 million to 1 against."
That would be quite impermissible, because Table 3.58 simply deals with the odds against any family with the same broad socio-economic characteristics suffering one or two SIDS deaths, and tells us nothing at all about any matter going to the guilt or innocence of any of the parents within that category should they be the unlucky family to suffer that death.
152. The defence complain (the source of the quotations is the defence skeleton argument):
a) that the judge did not direct the jury "... to reject the Crown's erroneous reasoning" - but they did not draw the judge's attention to that reasoning and its errors;
b) that the new evidence of the statisticians "... demonstrates that the prosecution invited the jury to adopt the figure of 73 million as having a significance in itself, without reference to the competing possibility ["...the incidence of double infant murder by a mother"] ... the figure has no significance or relevance. Consequently the jury were led to believe that this evidence demonstrated that the chances of the appellant being innocent was at least 73 million to 1 against."
153. So far as the first point goes, the Crown unsurprisingly deny that they ever put the case on statistics that way. It would surprise us if they had, because the point is thoroughly bad. It would also surprise us if the defence had not noticed so dramatic a change of position. If they had noticed, they would certainly have complained. If they had complained, the judge would have ruled in their favour.
154. In other words, it is stating the obvious to say that the statement "In families with two infants, the chance that both will suffer true SIDS deaths is 1 in 73 million" is not the same as saying "If in a family there have been two infant deaths, then the chance that they were both unexplained deaths with no suspicious circumstances is 1 in 73 million". You do not need the label "the prosecutor's fallacy" for that to be clear. It is clear that the second statement does not follow from the first, nor does it tell you anything about the children or their parents other than there were no smokers in the household, there was one waged income, and the mother was 27 or over - all being factors which put the Clarks in the lowest of all risk categories.
155. It is suggested by Dr Evett that the fact that the second statement does not follow from the first needs to be carefully explained to the jury. As a generalisation, we agree, but it all depends on just what was said. He also suggests that Professor Meadow contributed to the danger of misinterpretation. We do not agree that he did. Dr Evett quotes Professor Meadow's evidence under cross examination at 65A and 65D (see the passage quoted in paragraph 139 above):
"... you take what's happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in the circumstances is very, very long odds indeed, one in 73 million" (emphasis added)
and again at 65D of the Professor's evidence in cross-examination:
"You have to say two unlikely things have happened, and together it is very, very, very unlikely."
At 65A Dr Evett suggests that "... in these circumstances ..." refers to the odds against Christopher and Harry having died naturally. It is clear from the context that that is not what Professor Meadows was saying. He was dealing with the CESDI Study, and "... in these circumstances" clearly referred to the category of family the Clarks fell into. Equally, in the second passage relied on, Professor Meadow is clearly referring to the CESDI Study, which shows that for a family liked the Clarks a double SIDS death would be "... very, very, very unlikely". If Mr Bevan QC, for the defence, had understood him to be saying that the odds against both of these deaths being a SIDS death were 73 million to 1 that is a point which would certainly have been brought out in cross-examination and not left where it was, with the remark "Lies, damned lies and statistics". We will come back to this point.
156. Dr Evett rightly identifies the Crown's point that so long as the probability of two children dying of SIDS is very small, its exact size is of little relevance. But he inferred that:
"The `logic' implicitly applied at the trial was as follows: a certain event (the deaths of two babies in one family) has occurred. We are unsure of the cause. One possible cause is that both babies died of SIDS. However, the probability of two babies in the same family both dying of SIDS is extremely tiny. Therefore we can exclude that possibility and, in consequence, accept that the babies were murdered - if that is the only alternative."
We do not find support for such "implicit" application of that logic in the evidence. That was not how the case was put in the evidence. The transcript supports the explanation given by the Crown: to establish rarity when there was an issue as to whether the deaths were natural and true SIDS in one family.
157. Dr Evett's alternative source for his theory is an item in The Times, published after the conviction, (which we have not seen) stating:
"... the prosecution said that it was beyond coincidence that both children could have died naturally. The probability was one in 73 million".
If the reporter who heard that did, as Dr Evett thinks, understand that to mean that there was only one chance in 73 million that the children died naturally, we agree with Dr Evett that that would be a profoundly incorrect inference. But we do not know what the reporter heard, nor what he understood. The Crown say they did not put their case that way. Certainly if the Crown did say that in the course of the trial, we would have expected an immediate challenge from the defence, and a ruling from the judge favourable to the defence. But that did not happen. We conclude that at no time in the evidence was the case put that the odds against innocence were 73 million to 1.
158. There is clearly firmer ground in the passage in the judge's summing-up and this is what the appellant relies on (see the skeleton argument, page 27). There the judge summarises his understanding of the Crown case:
"Reliance was also placed by the prosecution on the statistics mentioned by Professor Meadow for the probability of two SIDS deaths within the family, namely one in 73 million and even longer odds, it was said, if you take into account the existence of the old and fresh injuries, and reliance was also placed on the seven similarities between the two deaths which I mentioned to you early in my summing up, and which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths." [for the avoidance of doubt, these "similarities" do not include the seventh similarity referred to at paragraphs 113-114 above]
159. As is generally the case in the Crown Court, no record has been made of counsels' closing speeches, and it would seem that the judge was here referring to Crown counsel's speech. Mr Bevan complains that in that passage the Crown suggests that "... the odds of the defendant being innocent are greater than 73 million to 1" and then goes on to analyse the impact of the judge's warning as to the statistics on that passage. We will take those points in turn.
160. The appellant's case is developed as per their skeleton:
"The fresh evidence of Dr Evett and Professor Dawid demonstrates that the prosecution invited the jury to adopt the figure of 73 million as having a significance in itself when in truth, without reference to the likelihood of a competing possibility, the figure has no relevance or significance at all".
The competing possibility identified is a double infant murder by a mother. That may be capable of being expressed in terms of a statistical probability, but legally speaking the exercise is not realistic - see R -v- Denis Adams (No 2) [1998] 1 Cr App R 377, which shows that it is not an exercise the courts would perform.
161. The history of the matter, set out at length at the beginning of this section, shows why the rarity of SIDS deaths, in particular double deaths in the same family, was - or was properly thought to be - relevant and that Table 3.58 was legitimately introduced in that connection. We have made it clear that these two deaths were not SIDS because of the unexplained, or insufficiently explained, previous injuries to the children. We have made the point that the evidential value of Table 3.58 to that Study only gives a general indication of the rarity of a double SIDS. That general indication cannot be increased by the facts of a particular case, because Table 3.58 addresses the chance of any family being so afflicted and does not help us as to the likelihood that a specific parent or parents abused their child, because it tells you nothing relevant to the question of guilt or innocence. That is a different question the answer to which cannot affect the general Table 3.58 question: namely what is the risk of a two child family suffering a double SIDS?
162. Therefore we accept that when one is looking ex post at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born, you are at a very low risk of a true SIDS death, and at even lower risk with the second child.
163. Professor Meadow did not misuse the figure in his evidence, though he did not help to explain their limited significance.
164. We return to the sentence of the summing-up referred to in paragraph 175. In our judgment, counsel for the Crown should not have said that the existing injuries led to "... even longer odds ..." than the 73 million to one. The existing injuries to the infants went to guilt, the odds went to rarity, and it was a mistake to add them together. Mr Spencer QC explained this on the basis of an "advocate's flourish", which does not impress us, but we are not persuaded that counsel for the appellant or the judge then understood the Crown to have submitted to the jury that the odds against the appellant being innocent were (because of the statistics in Table 3.58) 73 million to one against. That submission would in our judgment have been obviously fallacious, and had it been made, we would have expected Mr Bevan for the defence to have objected, the judge to have upheld the objection, and the 1 in 73 million figure would have gone as an unnecessary distraction. That there was no such application suggests the lack of impact of "... 1 in 73 million and even longer odds ..." on the third day of the summing-up of this long trial. But we must and do assume that counsel said what the judge reported him as having said. Might the jury have focused on that to the exclusion of the real and compelling evidence in this case?
165. We come then to the adequacy of the warning as to the use of statistics which the judge gave when first introducing them before his summary of Professor Meadow's evidence. For convenience we repeat that warning:
"I should I think members of the jury just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family it does not mean that there cannot be another one in the same family. That part of the evidence relating to statistics is nothing more than that. It is a part of the evidence for you to consider. Although it may be part of the evidence to which you attach some significance, it is of course necessary for you to have regard to the individual circumstances relating to each of these two deaths before you reach your conclusion on the two counts on this indictment.
Having said that, members of the jury, I turn then to what truly were the conclusions of the relevant experts relating to Harry. The first one is Sir Roy Meadow and his conclusion was that Harry's death could not be classified as a SIDS death and in his opinion Harry did not die a natural death. He also said that the further information that he had received since he made his witness statement in June 1998 sadly increased the strength with which he felt that these two deaths were not natural."
166. We have made clear what the judge should have told the jury: that it was the prosecution's case that to have one unexplained infant's death with no suspicious circumstances in the family was rare, and for there to be two such in the same family would be rarer still. That was the only relevance of Table 3.58, and the statistics were capable of showing that, but nothing more. They could not help as to whether the defendant was guilty or not guilty. Against this, we examine the caution that the judge gave the jury, found in the summing-up at Day 2, page 39. He was sounding "... a note of caution ...". However compelling the jury found the statistics "... we do not convict people on the statistics". That was a clear warning. He was not saying he found the statistics "compelling". He gave a limited purpose to them: "If there is one SIDS death in a family, it does not mean there cannot be another one". His passage was introduced as sounding a note of "caution" about the statistics. He conceded that they could attach "some significance" to them, but did not say what. But he led them back to the necessity of "... having regard to the individual circumstances of these deaths". He followed the cautionary passage with what "truly" were the conclusions of the experts relating to the deaths, with no mention of statistics. And that reflected the reality and focus of the trial. And it was that evidence that the trial had concentrated on. The difficulty we feel here is that by the time of the speeches, rarity was largely accepted, so the measure of rarity, the CESDI Study, was not important. The 73 million figure should have been cleared away as a distraction. Instead the judge considered that the statistics could be considered. Might the jury have been misled into attributing to those statistics a significance they did not have, i.e. as lengthening the odds against the deaths being natural?
167. The argument that the jury might have been so misled relies entirely on the wording of the passage. That has to be read in context. The context is a substantial trial properly concentrating on the medical issues and the circumstantial evidence, including the parents' evidence and their credibility. The contrary argument seeks to put the passage into context. The trial was not about statistics. The summing-up was detailed (170 pages approximately), careful and fair. Only two or three pages, in scattered passages, dealt with statistics. And there is the difficulty that the point identified in the grounds of appeal seems not to have been noticed in the trial. Had it been, it is difficult to see how it escaped judicial attention.
168. Despite those objections, we conclude that there is some substance to the criticism that the judge appeared to endorse the prosecution's erroneous approach in this particular. The ultimate question for us is whether the error of approach rendered the conviction unsafe. That is something best considered after examining the remaining grounds of appeal, when we can look at the case in the round.
Ground 4: fresh medical evidence
169. The fourth ground of appeal is based on the fresh medical evidence adduced pursuant to leave granted by the Full Court. For that purpose we received a number of expert reports and heard examination and cross-examination over a period of some days. The issues relate to the medical evidence given at trial as to the existence of haemorrhages at the back of Harry's eyes.
The position at trial
170. Before the trial began the Crown were relying on eight medical findings by Dr Williams at post-mortem examination of Harry: 1) hypoxic damage to the brain at least two hours before death; 2) small haemorrhages on the brain; 3) two petechial haemorrhages on the eyelid; 4) haemorrhages to the back of the eyes; 5) old fracture to the second right rib; 6) dislocation of the first rib; 7) spinal bleeding with a swollen cord; 8) intra retinal haemorrhages.
171. Shortly before the trial began, Professor Green and Professor Luthert met to discuss their findings, as a result of which they agreed that the intra retinal bleeding was of post mortem origin and must be completely discounted. The significance of that agreement was that it excluded death by shaking, in that intra retinal haemorrhages are a very strong feature of shaken babies. The prosecution thereafter presented their case on the basis that Harry had been subjected to a violent trauma to the spine, the mechanism of which was not clear, and had then been the victim of suffocation which caused his death. The prosecution also relied on earlier abuse as evidenced by the injuries to the ribs.
172. At trial Dr Williams, the paediatric pathologist who performed the post mortem, gave evidence that when he opened up the orbits, on the upper surface of the right eye there was an area of haemorrhage about 7mm across and on the outer aspect of the left eye there was a small area of haemorrhaging about 2mm across. He described the position of the haemorrhages as behind the eyelids, on the covering of the eye within the scalp and not visible by someone looking at the face. When asked by counsel for the Crown whether he had seen that before he replied:
"I've seen it since. Its not described in any of the books as yet. I mean, the only time I've seen it is in acute cases of overlaying and smothering where there has been an asphyxial mechanism but I can't say that its invariably present".
173. He was asked about the cause of death and whether asphyxia/ smothering was something which he could or could not exclude, to which his answer was:
"apart from the petechiae in the eyes, there is no other evidence of smothering".
174. Dr Williams acknowledged that he did not know the significance of the haemorrhages and how they occurred, but a blood vessel in the eye had leaked for certain although he did not know the cause. Dr Williams did not agree with the proposition that the haemorrhages were artefactual resulting from the post mortem. He was not asked any questions by the defence in cross examination in respect of other similar cases to which he had referred, but in re-examination counsel for the Crown asked Dr Williams:
"Q You expressed an opinion when I asked you questions yesterday based upon recent experiences you said.
A I've seen these haemorrhages again more recently in some cases where there's undoubtedly been smothering or overlaying, but I mean they are not always present and they are not invariable, they are just an observation one has made on a couple of occasions.
Q This is in children of what age?
A Similar sorts of ages to these, but whether they are just there by chance, because it's well recognised that in asphyxia mechanisms of death, whatever the cause, that you get quite large haemorrhages at the front of the eyes, but in addition you not only get the petechial, small pin point haemorrhages but in the whites of the eye you see quite large haemorrhages on occasions. Now in discussing it, or thinking about it with colleagues one wonders whether its just a reflection, what one sees in the front of the eye occurring in the back of the eye, but its not been reported.
Q But in the cases you are describing have you seen it on the back of the eyes or the front of the eyes?
A In these cases it's again been on the back of the eye, but can I just say that it's not a normal practice in strangulations in older people, even older children, one does not routinely examine the backs of the eyes, one does not take the roof of the orbit off, and as a result it may be that we have not been looking rather than it's not there."
175. Dr Williams was not asked by either side to produce records of any other case histories and his final position on this topic was that he could not exclude smothering, or asphyxia. He agreed that he could not exclude the possibility that some leakage from one of the small veins in the fatty tissue surrounding the eye might have caused one or both of the haemorrhages.
176. Professor Green gave evidence that he had discussed the haemorrhages with Professor Luthert and neither of them had seen such haemorrhages in eyes removed post mortem. Professor Luthert had suggested to him that the leakage from a small vein was a possibility during removal of the eyes and when asked to explain how this might arise he replied:
"... because as you are removing the eyes from the orbit, you have to cut through the various muscles that make them move from side to side and up and down. You also have to cut through the optic nerve and you will cut through the optic nerve and you will cut through the blood vessels which are supplying the eye, and the tissues around them. And veins, even though after death there is no pressure in them, can ooze a little blood."
177. Professor Green then stated that the 7mm haemorrhage was on the surface of the eye itself and the photographs did not show bleeding in the adjacent fat. When asked what this signified he replied:
"I can only speculate, and as I say I have never seen anything like this in my personal experience: had a vein of any size been cut I would have thought that there would have been more diffuse bleeding in the fat covering the eye as well as on the surface of the eye itself."
178. He then deferred to the greater experience of Professor Luthert in removing eyes.
179. Professor Green was asked whether upon removal of the eyes, blood dripping down from a cut vein on to the globe of the eye could have accounted for haemorrhage. His reply was:
"The blood was between the membrane covering the hard white globe of the eye". If this had been blood just dribbling from a cut vein onto the globe of the eye, I would have expected it to be not so clearly defined and localised on the police photograph and I would have expected it to have washed away it was merely on the surface before the section of the eye was cut, because as I said in one section which I examined with Professor Luthert you can actually see this little blister full of red blood cells underneath the membrane covering the eyeball. So in short, I can't exclude the leakage from the vein theory, but these are the reasons why I am unhappy about it."
180. The witness went on to state that he had occasionally seen bleeding of that sort and in that area in living patients but had never seen it in post mortem specimens and although he had not made a detailed search, he had not found it in the standard text books on ophthalmic pathology.
181. Professor Luthert, a consultant ophthamologist and neuropathologist, in evidence stated that he had never before seen haemorrhages on the posterior aspect of eyes at post mortem, and it was speculation as to how they were caused. He disagreed with Professor Green that if the blood had dripped onto the eyes from a cut vein, it would have washed away because in his experience material within the episclera did not necessarily wash out when it was applied from outside post mortem since the material above the eyes was absorbent. He was of the opinion that the haemorrhage was an artefact but could only speculate how it was caused. He was asked by counsel for the Crown as follows:
"Q So can we take it Professor that you are not excluding the possibility that suffocation could cause haemorrhage of the eyes similar to that scan at the back of Harry's eyes?
A No I cannot totally exclude that no.
Q Well why do you say totally?
A Because in my opinion it is unlikely but I can not exclude it".
182. Professor Luthert was further questioned:
"Q I suggest Professor that the haemorrhages to the back of Harry's eyes are consistent with his having suffered death by asphyxia?
A I think they are consistent with that because I believe they might be there anyway".
183. In re-examination he was asked:
Q Professor is there any medical knowledge or learning associating these sort of haemorrhages that we have found on the surface of the back of the eye with suffocation or strangulation?
A Not that I have any knowledge of no".
184. Dr Keeling, who is a consultant paediatric pathologist, deferred to the expertise of the ophthalmic consultants. She gave evidence that she had not encountered haemorrhages on the back of an eye, could not think of any explanation to account for their presence but did not consider that blood could have dripped onto the surface of the eye, because the blood was not on the surface but was lying between two layers of the structure of the eyeball.
185. At the conclusion of all the evidence at the trial, the evidential position in respect of the haemorrhages at the back of Harry's eyes was as follows:
a) Only Dr Williams, who is not an expert on eyes supported the proposition that the haemorrhages were real as opposed to artefactual. The opthalmic experts considered that the haemorrhages had been caused at post mortem either by blood dripping onto the surface of the eyes, or by nicking the vortex vein.
b) Although Dr Williams stated in evidence that he had seen such haemorrhages as Harry displayed "in acute cases of overlaying and smothering where there has been an asphyxial mechanism" he did not rely on that as a finding which proved smothering in Harry's case. His position was that apart from the petechiae in the eyes there was no other evidence of smothering.
c) Professor Luthert accepted that he could not totally exclude the possibility that the haemorrhages were consistent with death by asphyxia, and he stated that "they are consistent with that because I believe they might be there anyway".
d) Neither Professor Luthert nor Professor Green had ever seen or heard of, or read in literature of such haemorrhages at a post mortem, although they had observed them in living patients.
e) The evidence in respect of these haemorrhages was peripheral to the main issues in the case, and had occupied little time of the court when compared with principal medical issues.
186. In his summing up, which was spread over three days, the judge reminded the jury of the evidence given in relation to the haemorrhages. In respect of Dr Williams he said this:
"Secondly, so far as the eyes are concerned, on internal examination, Doctor Williams found an area of haemorrhage about 7 millimetres across on the upper surface of the right eye and also a small area of haemorrhage on the upper surface of the right eye. Indeed, he said he saw it immediately the eyes were exposed. Doctor Williams said that he had only seen such features in cases of death caused by over-laying or smothering."
187. It is to be noted that the judge dealt with Dr Williams's experience of haemorrhages at the back of eyes in the single sentence at the end of that passage, and without further comment.
188. He later reminded the jury of the evidence given by the defence experts:
"Next Professor Luthert dealt with the blood that had been found on the surface of the backs of both Harry's eyes. He and Professor Green agreed that it was not a classic sign of shaking and that it was not a finding associated with any particular disease. Professor Luthert speculated that the blood might have dropped down on to the eyes during dissection. He said that the blood appeared to be beneath the access points for dissection to both of the eyes.
That was challenged in cross-examination but he said that the de-roofing of the orbit was quite extensive so there did not have to be a precise alignment. He described it in cross-examination as total speculation that the blood had dropped down in that way but he said it was a workable hypothesis in the absence of any other explanation. He also agreed that he could not exclude the possibility that it resulted from suffocation. He considered, however, that it was most likely that the blood had accumulated post mortem and was not indicative of any pathology before death. He said that he saw no significant pathology in Harry's eyes.
It was suggested to Professor Luthert that if the blood at the back of the eyes had dropped down during dissection it would be a common occurrence but Professor Luthert said that pathologists do not necessarily focus in on every aspect of what they are looking for and that routinely they factor out the presence of blood. By that he meant that they would tend to assume that haemorrhaging is due to blood loss at the time of post mortem, unless it is something out of the ordinary. He agreed, however, that pathologists would be on the look out for this kind of blood during a general examination of the eyes."
189. At the end of his summing up he gave the jury a brief reminder of the way both sides put their cases in counsel's final speeches. In relation to Harry the prosecution pointed out that, although some of Dr Williams's findings were not confirmed, there were a large number of important findings of his which were confirmed. The first three items listed were: (1) the hypoxic damage to the brain due to lack of oxygen; (2) the small brain haemorrhages; and (3) the petechial haemorrhages on the eyelid, which had been confirmed by other experts' medical evidence. The fourth was the haemorrhages to the back of the eyes:
"Fourthly, the haemorrhages to the backs of the eyes which Professor Luthert thought were artefactual but which he said could possibly be consistent with asphyxia. You were reminded that Dr Spillman who had been at the post mortem had immediately noticed the 7mm area of haemorrhage."
190. The remaining items were: (5) the fracture of the second rib; (6) the dislocation of the first rib; and (7) the spinal bleeding and swollen cord. The injuries to the ribs were confirmed by other medical experts, and the injury to the cord depended upon Dr Williams's own observation, but if accurately observed was agreed by all experts to be highly significant and must have resulted from trauma.
191. Turning to the defence case, the judge reminded the jury of the various matters relied on as casting doubt on Dr Williams's reliability. In relation to the haemorrhages at the back of the eyes, the defence case was as follows:
"[Professor Green] was also wrong, it was submitted, in saying that if the blood on the backs of the eyes had been artefactual, it would have been washed away because Professor Luthert had shown that the material above the eyes was absorbent."
192. It is apparent therefore that in a summing up which covered over 170 pages of transcript, the references to the haemorrhages at the back of the eyes played a minor role.
The issues now raised
193. After the appellant had been convicted, the solicitors acting for her entered into correspondence, initially with Dr Williams and then with the CPS, requesting disclosure of the case records which Dr Williams had referred to in evidence. The release of post mortem reports and supporting documents and materials required the consent of the coroners concerned.
194. On March 30^th 2000 the CPS wrote to the solicitors for the appellant in the following terms:
"With reference to your letter of 14^th March 2000 detailing specific requests of Dr Alan Williams he has responded as follows:
Dr Williams confirms that he has identified one baby death which has recorded haemorrhages in the orbit and on the surface of the back of the eye, and also an adult case with the same findings seen recently. He has not extended his search further. If required he can produce these reports with the permission of the appropriate coroner."
195. Subsequently Dr Williams found a third case.
196. These three post mortems formed the basis of the application to the Full Court for leave to adduce further evidence in the current appeal on the ground that the fresh material "... has a serious impact upon one aspect of Dr Williams' evidence and moreover will inevitably have affected the jury's assessment of Dr Williams' reliability".
197. The three post mortems have been identified as Baby Callum, Baby M and Female X. The post mortem reports and supporting material have been examined, and have been subject to evidence by, Professor Levin and Doctor Parsons, who did not give evidence at the trial, and Professor Luthert and Dr Keeling, who did give evidence at the trial. The area of medical expertise of these four witnesses is:

* Dr Levin is Associate Professor of Ophthalmology at the University of Toronto, Canada, and Fellow of the American Board of Paediatrics. He is one of 10 in the world with a dual expertise in ophthalmology and paediatrics.
* Dr Parsons is Honorary Consultant in Ophthalmic Pathology at the Royal Hallamshire Hospital Sheffield, Senior Lecturer in Ophthalmic Pathology at Sheffield University and he has a special interest in child abuse. He is one of six opthalmic pathologists in the UK.
* Professor Luthert is Professor of Pathology at London University and Honorary Consultant Neuropathologist to Moorfields Eye Hospital.
* Dr Keeling is Consultant Paediatric Pathologist at the Royal Hospital for Sick Children, Edinburgh.

198. Baby Callum was discovered dead in a dustbin liner. He has never been identified and is the subject of continuing police investigation. He died at birth in March 1998. Dr Williams identified in the post mortem report: 1) blood-stained fluid in the left eye; 2) large blotchy haemorrhage in the lateral part of the white of the globe of the left eye; 3) blotchy haemorrhages in the white of the globe of the right eye; 4) no petechial haemorrhages in the eyelids. The infant showed acute asphyxia due to impaction of foreign material in the larynx and mouth, bruising of the neck consistent with attempts at strangulation and numerous bruises not consistent with normal labour. Cause of death was given as asphyxia but the mechanism was not identified.
199. Baby M died at 7 weeks of age in March 1998 but was not the subject of any police investigation; in consequence no photographs were taken. There were no petechial haemorrhages in the anterior parts of the eyes or eyelids. Dr Williams found: 1) petechial haemorrhages on the periosteal surface of the scalp, 2) removal of the eyes showed petechial haemorrhages on the globe of the left eye. Cause of death was given as asphyxia without physical evidence of a cause, and there were macroscopic and microscopic changes associated with asphyxia. The conclusion was reached by Dr Williams that the infant died from an asphyxial mechanism which may have been due to having been in bed with his parents.
200. Female X did not die until after the trial and therefore did not feature as one of the comparable cases referred to in Dr Williams's evidence. The deceased died of strangulation on February 5^th 2000. Dr Williams found: 1) large blotchy haemorrhages into the corners and lids of both eyes with petechial haemorrhages into the eyelids and white sclera; 2) dissection of the eyes showed large intra orbital haematoma with haemorrhage into the scleral surface of both eyes. The cause of death was given as strangulation by ligature.
201. The further evidence called before this court is relevant to three issues which this court has to consider:

a) whether the haemorrhages observed at the back of Harry's eyes were peri-mortem, or were artefacts arising out of the autopsy and therefore of no evidential value;
b) whether the cases of Baby Callum and Baby M, upon which Dr Williams placed reliance in evidence, could lend support to the proposition that such haemorrhages, if real and not artefactual, may be associated with death by asphyxiation;
c) whether such evidence, had it been before the jury, might have affected their verdict so as to render that verdict unsafe.

202. We propose to examine each issue in turn.
Artefact or real haemorrhage in Harry's eyes
203. Dr Levin opined that the haemorrhages may be artefactual, because he had never come across them before either in practice or in literature, and if an autopsy is carelessly performed it can involve a prick of the blood vessel which would produce a haemorrhage in the form of leakage of blood into the episclera or tenon's layer. In giving this opinion Dr Levin assumed inaccurately that a knife had been used instead of forceps and that the eyes had been shredded for dissection instead of teased out in layers. He rejected the suggestion that the haemorrhages found by Dr Williams could have been caused by blood dripping, because the blood was below the membrane and could not have soaked through to settle between the layers.
204. Professor Luthert repeated his evidence at trial, that he considered the haemorrhages were artefactual, but he changed his position in respect of causation in that he gave his opinion before this court that the vortex vein might have been nicked with consequential oozing of blood which tracked under the semi-opaque membrane known as tenon's capsule, thereby tracking between the layers. Before this court Professor Luthert considered that causation more likely than blood dripping onto the eye.
205. Dr Parsons was 99% sure that the haemorrhages were real and not artefacts. He identified from an enlarged photograph of Harry's eyes that a forceps and not a knife had been used, and he demonstrated from that photograph the reason for his opinion that the bleeding was within the tissue plane in respect of the larger haemorrhage of 7mm. He found it harder to identify the origin of the smaller haemorrhage, but he was still of the opinion that it was a true haemorrhage. Dr Parsons gave reasons for his opinion:

a) Dr Spillman was present at the autopsy and gave evidence that he "had seen the area of haemorrhage on the upper surface of the right eye. He saw it immediately the eye was exposed". This evidence was before the jury. The significance according to Dr Parsons was that it takes time for a dead body to ooze blood if a vessel is nicked.
b) Dr Williams would have known if he had cut a vein, but he photographed what he considered to be a true haemorrhage.
c) The enlarged photograph, which was not available at trial and which was produced for Dr Parsons' own examination, enabled him to demonstrate a clear difference between the colour, edge, and wetness of the small collections of wet blood and the haematoma in the eyes. The eye haemorrhages were covered by a thin semi translucent white tissue membrane such as tenon's capsule.
d) On the macroscopic photographs of the eyes no puncture marks or cuts appear in the membranes over the eye haemorrhages.
e) The position of the eye haemorrhages in the macroscopic photographs is on the uppermost surface of the eye. If blood had dripped onto this point it would run off, by reason of gradient, and accumulate in the lowest part of the cranial cavities.
f) If blood had been on the eye surface and dried, it would have a darker appearance, such as is the case in respect of dried blood collections seen in photographs 18 and 19.
g) The irregular outline of the eye haemorrhages would be extremely difficult to create by dripping blood onto the eyes.
h) The site of the haemorrhages, particularly in the right eye, is in the area of the vortex vein and the ciliary veins which supply blood.
i) Professor Luthert's interpretation of the microscopic findings of the right and left eyes, which had undisputed episcleral haemorrhages, did not take account of the technique used by Dr Williams which involved removal of the membranes, whereas an ophthalmic pathologist would not have removed tenon's capsule. By reason of that procedure by Dr Williams, the episcleral haemorrhages appeared inaccurately to be the same outer eye surface as on the macroscopic photographs.
j) The India ink test referred to by Professor Luthert was flawed, because the tenon's capsule, which is thicker in a child than an adult, would form a barrier, and the ink has a different carbon size to blood.
k) The reference by Professor Luthert to his experience of patches of blood, as opposed to haemorrhages, on the surfaces of eyes removed after death for donation was not comparable to Harry's condition because donor eyes are removed from the front, cutting through membranes which release blood.
l) Post mortem hypostasis cannot be a factor in the production of petechial haemorrhages on the eyelid as the face was pointing upwards after death and hypostasis was posterior.

206. Dr Keeling deferred to the ophthalmic experts on this topic, but she did give her opinion that she thought it unlikely that dripping blood could account for the appearance of the eyes because she would have expected blood to run around the surface of the eye which is convex and that it would have washed off.
207. Dr Levin, Professor Luthert and Dr Parsons all agreed that, although they had never seen such haemorrhages, nor read about them, and therefore Harry was unique, nevertheless the haemorrhages, if real, were in conjunction with the other haemorrhages consistent with smothering. Dr Levin and Professor Luthert expressed their view in the words that they could not exclude a connection with asphyxia, whereas Dr Parsons concluded that Harry suffered an unnatural inflicted asphyxial mode of death by reason of the different areas of haemorrhage and the input of Professor Green and Dr Keeling.
208. Dr Levin is not a pathologist, and he was subject to criticism by the other experts for suggesting that a pathologist should move the eyes in the socket before removal and dissection.
209. If this evidence had been before the jury at the trial, they would have had to consider its significance in the light of the following matters: 1) Dr Levin does not have experience as a pathologist; 2) Professor Luthert had shifted ground in supporting his reason for the opinion that the haemorrhages were artefactual; 3) credible evidence from Dr Parsons, accompanied by careful investigation and reasoning to support the proposition that the haemorrhages were real.
210. In contrast, at trial the jury had evidence only from Dr Williams that the haemorrhages were real, and he is not an expert on eyes.
211. In the opinion of this court, the additional fresh evidence would have been likely to strengthen the contention that the haemorrhages were real.
Comparability of the three cases
212. A general point arises in respect of terminology. Dr Williams is not an ophthalmic pathologist and it is clear from the evidence that he uses the term "back of the eyes" to denote such area as cannot be seen when looking at eyes from the front. He regards anything which can be seen as anterior, and anything which cannot be seen as posterior.
213. Harry's haemorrhages were undoubtedly in the posterior region as defined by the ophthalmic experts, i.e. behind the anatomical equator or posterior pole as measured from the optic nerve.
214. The first question which arises in respect of the three cases is whether the haemorrhages relied on for comparison were in the same region of the eye.
215. Baby Callum. Dr Levin and Professor Luthert described the haemorrhages in baby Callum as anterior. However, each agreed in evidence that they were in the same plane as Harry's haemorrhages and that was an important factor. Dr Parsons identified the most posterior haemorrhage in Callum at 9 o'clock in the left eye over an episcleral vessel with intense congestion of the choroidal blood vessels. Professor Luthert identified one haemorrhage in the left eye 7mm from the limbus, but did not note the more posterior haemorrhage 8mm from the limbus, identified by Dr Parsons. Both findings indicate raised intravenous pressure and venous congestion and Professor Luthert, Dr Keeling and Dr Parsons agreed that the findings were consistent with death by asphyxiation, or following child birth by reason of compression of the chest. Dr Levin did not agree because the information in the autopsy report was imprecise, the majority of the haemorrhages were in the sub conjunctival space which were absent in Harry's case, and he considered the episcleral haemorrhages could be artefact. Further he considered the mechanism of asphyxiation to be different from Harry's case although an asphyxial manner of death was not challenged.
216. Baby M. Dr Levin was not able to draw any conclusion by reason of the imprecise information as to the existence and location of haemorrhages and the absence of photographs. What is clear from the evidence is that M was observed to have petechial haemorrhages at the back of the left eye, which were only visible when the globes were removed. However they did not show up on the slides of the sections taken. There was unchallenged evidence of an asphyxial death.
217. Baby M had petechial haemorrhages whereas Harry did not. Professor Luthert described M's haemorrhages as discrete rather than a confluence of petechiae. There was in essence no disagreement between the experts in respect of M. The evidence is imprecise. Dr Parsons stated in evidence that the case merely demonstrated that you can have haemorrhages on the back of the eye as defined by Dr Williams in association with an asphyxial mechanism. Dr Keeling agreed.
218. Female X was not a comparable used by Dr Williams because she died at a later date. It was agreed by all the experts that infants respond differently to insults than do adults, and a baby is not a small adult in that e.g. the tenon's capsule over the sclera is thicker in infancy. Some of the haemorrhages in Female X were subconjunctival, which was not a feature of Harry's case.
219. Dr Levin did not consider this a suitable case in principle as a comparison. There was disagreement in evidence between Dr Parsons and Professor Luthert in the interpretation of certain photographs. Professor Luthert could not identify in photograph 30 whether there was shadow or possibly orbital haemorrhage and he was not assisted by photographs 31, 32 and 33. However Dr Parsons in evidence identified a small round red point on photograph 32 which was resolved in photograph 33 as an isolated round haemorrhage. He concluded that there were bilateral orbital haemorrhages and that the photographs demonstrated an episcleral haemorrhage in the posterior half of the left globe in a posterior position similar to that of the haemorrhage in Harry's left eye. Both Dr Parsons and Dr Keeling considered that there was a general comparability with Harry's case, it being common ground that Female X had been strangled.
220. If the evidence of comparability of Baby Callum and Baby M with Harry had been before the jury at trial then the jury would have had to consider the significance in the light of evidence of : 1) the agreement between the medical experts that when strangulation or suffocation occurs there is an increase in the venous pressure in and around the eye, and an increase in the pressure can cause rupture of vessels; 2) each case having an asphyxial mode of death with evidence of episcleral haemorrhages in the part of the sclera which cannot be seen on examination from the front; 3) the position of the haemorrhages by evidence in Baby Callum's case and description in Baby M's case accords with Dr Williams own definition of "back of the eyes"; 4) the evidence of Dr Keeling and Dr Parsons that the cases support Dr Williams's statement in court that he has seen haemorrhages in the back of the eyes in cases involving an asphyxial death.
221. In contrast, the jury had no evidence at trial to support Dr Williams' contention.
222. Further, the case of Female X, although not strictly relevant, upon the evidence of Dr Parsons could demonstrate that Dr Williams had noted an association of posterior haemorrhages of the eye with an asphyxial death.
The effect of the fresh evidence
223. We have concluded that the fresh evidence on this issue does not have any possible effect on the safety of the convictions. The evidence relates to a discrete and marginal aspect of the case, and was in effect a very small and relatively insignificant part of a complex case which involved many major medical issues. Had the jury heard the new evidence, they might have found that the haemorrhages of Harry's eyes were real and not artefactual, and that the case histories did lend support to Dr Williams' observations of an association between asphyxia and haemorrhages behind the eyes, as defined by Dr Williams. The new evidence contains credible testimony to support both propositions and might have undermined the defence position in respect of those haemorrhages. The fresh evidence is capable of affirming rather than undermining the credibility of Dr Williams.
Ground 5: Direction on "no comment" interview
224. Mr Bevan seeks leave to raise a further ground of appeal, though one that he fairly describes as a "make-weight" point. It relates to a passage in the judge's summing up in which he referred to the appellant's interview by the police following her arrest for the murder of Christopher. The judge dealt with the relevant part of the interview in these terms:
"The officer, you may remember, put to [the appellant] the similarities between the deaths of the two babies, their age, the time of death, both in the bedroom when she was on her own and both in a bouncy chair and the fact that three medical experts were saying that both deaths were unnatural. Her solicitor advised her not to comment on that in the absence of disclosure of the reports and she accepted her solicitor's advice.
Some criticism is made by the prosecution of the defendant's failure at that time to dispute that both children were in the bouncy chair in view of her subsequent evidence that Christopher was not in a bouncy chair at the relevant time. You will obviously want to consider the whole of pages 29 to 31 of that summary that you have when you are considering that point and in particular the last question and answer on page 31 but you may think that, looking at the matter overall, she was in effect following her solicitor's advice to make no comment, which I should tell you was something she was quite entitled to do."
225. The last question and answer on page 31, to which the judge referred in particular, came after a passage in which the officer had got into confusion about the evidence of the doctors. That prompted an intervention by the appellant's solicitor, followed by the last question and answer, in these terms:
"Solicitor: Can I just say to you this highlights the difficulty of seeking to advise you in the absence of disclosure of reports, I suggest that you make no comment whatsoever about the observations that the Officer just put to you, none whatsoever.
Question: Okay, right do you have any comment to make on any of those similarities?
Answer: 'No comment'."
226. Mr Bevan submits that the judge, having correctly ruled that it was not an appropriate case for a direction as to the possibility of drawing of adverse inferences under s.34 of the Criminal Justice and Public Order Act 1994, should have gone on to direct the jury not to draw any adverse inference from the appellant's "no comment" answers. He relies on R v. McGarry [1999] 1 Cr App R 377, where it was held that when a judge had concluded that the requirements of s.4 of the 1994 Act had not been satisfied, and that therefore it was not open to him to leave the possibility of drawing adverse inferences to the jury, it was incumbent on him positively to direct them that they must not in any way hold against the accused his failure to answer questions; and that unless the jury received such a direction they would be left without any guidance as to how to regard the accused's refusal to answer, which might be seriously prejudicial.
227. We agree that, for the reasons given in McGarry, it is generally desirable, where a judge decides not to give a direction under s.34, that he should go on to give a clear direction to the jury not to draw any adverse inference from the defendant's silence. But in this case, to the extent that the judge fell short of giving such a direction, we do not consider that his approach caused any prejudice to the appellant, let alone that it was capable of undermining the safety of the conviction. The judge gave the jury a very clear indication that if they thought that the appellant was following her solicitor's advice to make no comment, no adverse inference should be drawn: that "... was something she was quite entitled to do". The passage in the interview to which he drew particular attention highlighted her solicitor's advice to make no comment. In those circumstances there was no danger of the jury, through lack of guidance, making an adverse inference which they should not have made.
228. We are reinforced in that view by the fact that the approach taken by the judge was agreed in advance with counsel. Prior to the summing up, it had been agreed that a s.34 direction was not appropriate but that it would be open to prosecution counsel to comment in his closing speech, in the same way as the point had been raised in cross-examination, on the fact that the appellant had not said anything after hearing the officer catalogue the similarities between the deaths. As a result of an observation in the defence closing speech the issue was raised again with the judge before the summing up. The judge indicated how he proposed to deal with the matter, very much along the lines of his eventual direction. Mr Bevan raised no complaint about the proposed course. Of course, the fact that an approach has been agreed in advance by experienced defence counsel does not prevent the point being raised on appeal if the approach was wrong in law; but it does tend to cast doubt on the suggestion that the approach was prejudicial to the interests of the appellant.
229. Mr Spencer drew our attention to the judgment of the European Court of Human Rights in Condron v. United Kingdom (2 May 2000). For the reasons already given, we do not consider that the approach adopted in the circumstances of the present case, with the agreement of the defence, gave rise to any unfairness or constituted a breach of the appellant's right to a fair trial under Article 6 ECHR.
230. Having dealt with the point in some detail, we give leave for it to be raised but reject it as a substantive ground of appeal.
106. Conclusions on the safety of the convictions
231. We have concluded that there is substance in only one of the grounds of appeal, namely that relating to the statistical evidence as to the rarity of SIDS deaths (ground 3, in particular 3(c)). In the light of the fresh evidence and related submissions, we have accepted that there was an error in the way in which the statistical evidence was treated at the trial. It remains for us to consider whether that error of approach rendered the convictions unsafe.
232. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides:
"(1) Subject to the provisions of this Act, the Court of Appeal -
shall allow an appeal against conviction if they think that the conviction is unsafe; and
shall dismiss such an appeal in any other case."
233. The approach to be adopted by the Court of Appeal in a case involving fresh evidence was considered in Stafford and Luvaglio v. DPP [1974] AC 878. Its effect was summarised by Lord Lane CJ giving the judgment of the court in R v. Callaghan (1989) 88 Cr App R 40, 47:
"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."
234. That approach was further endorsed in R v. Jones [1997] 1 Cr App R 86, a case decided under s.2(1) of the Criminal Appeal Act 1968 in its present form. Lord Bingham CJ, giving the judgment of the court, set out the passage we have quoted from Callaghan and went on (94C-D):
"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."
235. In two recent decisions of this court to which our attention has been drawn, R v. McCloughlin (30 November 1999, unreported) and R v. Cairns [2000] Crim LR 473, the court expressed itself in terms of the effect that the fresh evidence might have had on the jury. But we do not understand the court to have been purporting in those cases to lay down any different test from that in Callaghan and Jones. As pointed out in Callaghan, in the passage we have quoted, the court may choose to test its views by asking itself what the original jury might have concluded.
236. In the present case, however, we are concerned not simply with the assessment of fresh evidence but with the implications of an error of approach at trial as shown by that evidence. We should therefore have regard not only to the fresh evidence cases, but also to the authorities concerning unfairness or legal error in the trial process itself. For that purpose it is sufficient to cite the statement of principle in the recent judgment of the Court in R -v- Davies & Others (17 July 2000), a case in which the Court examined the relationship between the concept of safety and unfairness or misdirection at the trial:
"The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been `vitiated by serious unfairness or significant legal misdirection'. ... Usually it will be sufficient for the court to apply the test in Stirland which, as adapted by [counsel] might read:
`Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'
That being so there is no tension between s.2(1)(a) of the Criminal Appeal Act, 1968 as amended, and s.3(1) of the Human Rights Act, 1998".
237. With those authorities in mind, we turn to examine the overall strength of the case against the appellant, and to consider, in the light of it, whether the error in relation to the statistical evidence at trial had any effect on the safety of the convictions.
The strength of the case at trial
238. We have considered with care the extensive evidence placed before the jury at trial, and we have concluded that there was overwhelming evidence of the guilt of the appellant on each count.
239. No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS. Only the appellant relied on that contention, because she had no explanation nor credible account in respect of the previous injuries sustained by each baby. Young, immobile infants do not sustain injury without the carer having a credible history as to how the injury was caused. There was no such history from the appellant.
240. Medical evidence in respect of Christopher demonstrated that provided the jury accepted Dr Williams's evidence of the bruising and torn frenulum, there was an overwhelming inference that Christopher had been subjected to physical abuse shortly before death, and consistent with smothering. The findings of fresh blood and old blood in the lungs were independently consistent with smothering causing death and previous attempted smothering. The extent of the old blood in the lungs was inconsistent with a natural nosebleed because such an event would have required hospital admission for a seriously ill baby, whereas Christopher spontaneously and rapidly recovered from a nosebleed which was insufficient to stain clothing.
241. The recurrent features of infant killing originally thought to be natural death, and identified by Professor Meadow, were present: the previous unusual nosebleed unsatisfactorily explained; the time of evening when Christopher died; the fact that prior to death he had been well and had taken a feed; the inconsistent history recounted by the appellant as to whether Christopher was in a Moses basket or a bouncy chair.
242. The behaviour of the appellant at hospital when told her baby was dead impressed Dr Douglas as "... very dramatic and almost hysterical ..." and was described by her as "... such an over-reaction."
243. Medical evidence in respect of Harry identified:
a) extensive fresh bleeding around the spine; and, if Dr Williams's observations were accurate, swollen spinal cord;
b) hypoxic damage to the brain which occurred at least three hours before death;
c) haemorrhaging to the surface of the brain consistent with smothering;
d) petechial haemorrhages to the eyelid consistent with smothering;
e) unexplained haemorrhaging to the outer surface of the backs of both eyes;
f) fracture of the second rib which was some four weeks old for which there was no natural explanation;
g) dislocation of the first rib.
244. Professor Berry and Dr Rushton who gave evidence for the defence agreed that if Dr Williams's observation of a swollen spinal cord was accurate and the bleeding in the spine was from trauma, they would conclude a traumatic non-natural death and the fracture of the second rib and the petechiae in the eyelids would cause even more concern of a history of abuse.
245. All the experts agreed that in order to assess whether the spinal cord was swollen, the naked eye was best placed to identify it and the pathologist can feel the spinal cord at post-mortem. Although none of the experts could identify a precise mechanism of injury to give rise to a swollen cord, it was agreed that some form of flexion, extension or rotation injury was the most likely.
246. The consultant neuropathologists called - for the Crown Dr Smith, and for the defence Dr Whitwell - agreed that there was hypoxic damage some hours before death and if Harry died shortly before 9.37 p.m. when the 999 call was made, the hypoxic damage could have been caused from 5.30 p.m. onwards, because a least two hours had to elapse before death to account for the presentation of the nerve cells. At all relevant times the appellant was alone with Harry.
247. All the experts agreed that the haemorrhages on the surface of the brain were a non-specific indicator of smothering, but were entirely consistent with smothering and could have occurred immediately after smothering. The petechial haemorrhages in the eyelid were agreed to be consistent with smothering by Professor Berry, Dr Whitwell, Dr Rushton, Dr Williams, Professor Meadow and Dr Keeling. No other condition was found in Harry to account for the presence of the petechiae, and the experts regarded them as worrying features which, as Dr Rushton stated, raised the spectre of asphyxia.
248. In respect of the dislocation of the first rib, although there was an issue as to whether it was the result of injury before death, or whether it might have been a resuscitation injury, all the experts agreed that it would be very unusual to see a fracture dislocation of ribs from resuscitation, and particularly an isolated fracture not matched on the other side.
249. The strength of this medical evidence in respect of Harry was that, if the jury accepted Dr Williams's evidence about the spinal cord, there was an overwhelming inference that Harry had been subject to trauma shortly before death, and had hypoxic damage consistent with suffocation earlier in the evening.
250. The appellant never at any time gave a history to account for the fracture of the second rib, for which no natural explanation was available, and which occurred to a four week old, immobile baby. Such injury called for a credible account to account for it, but none was given.
251. The appellant's description of Harry slumped forward in his bouncy chair was demonstrably untrue.
252. Professor Meadow identified recurrent features in killings [initially] thought to be natural: the time of day, the fact that Harry had been well and had taken a feed; the inconsistency between the appellant's account and her husband's as to what he was doing downstairs; smothering is often combined with other abuse.
253. The untrue evidence given by Mr Clark about the time of his homecoming, which necessitated his recall at trial, was of the greatest significance in our judgment because had he arrived home at 5.30 p.m., it would have undermined the prosecution case. Mr Clark and the appellant gave evidence which initially vouched for the contention that the appellant was not alone with Harry, and did nothing to him during the evening. The fact that he had to be recalled to admit that he arrived home some 2½ hours later signified that the appellant had been alone with Harry, and that her husband could in not way vouch for her. It is further highly significant in our judgment that upon recall, he denied knowing that there was a prosecution allegation that Harry had sustained hypoxic damage earlier that evening when the appellant was alone with Harry, although he had been questioned by the police on that basis in April and July 1998, and the defence formally admitted service of the medical reports which contained this allegation. The credibility of Mr Clark had relevance not only to the circumstances of Harry's death, but also to his account of Christopher's nosebleed.
254. The reaction by the appellant to Harry's death in a conversation with the coroner's officer, Mrs Hurst, when she told the officer that she and her husband would try for another baby, struck Mrs Hurst as most unusual.
255. Taken separately there was a very strong case on each count. Take together we conclude that the evidence was overwhelming having regard to the identified similarities:
a) the babies died at the same age;
b) they were both found by the appellant and both, according to one version of the appellant, in a bouncy chair;
c) they were found dead at almost exactly the same time of evening, having been well, having taken a feed successfully, and at a time when the appellant admitted tiredness in coping;
d) on each occasion the appellant was alone with the baby when it was found lifeless;
e) on each occasion the appellant's husband was away from home, or about to go away from home;
f) in each case there was evidence of previous abuse: for Christopher an attempted smothering; for Harry an old rib fracture;
g) in each case there was evidence of deliberate injury recently inflicted: for Christopher bruising and a torn frenulum; for Harry hypoxic damage, petechial haemorrhages in the eyelid and fresh bleedings of the spine and swelling of the spinal cord;
h) the rarity of two natural deaths in one family with the first five features above present, and the extraordinary coincidence, if both deaths were natural, of finding evidence of old and recent abuse.
256. For all those reasons, we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached. Had the trial been free from legal error, the only reasonable and proper verdict would have been one of guilty.
257. It follows that in our judgment the error of approach towards the statistical evidence at trial identified at paragraph 181 (Ground 3(c)) did not render the convictions unsafe.
258. The appeal against conviction on each count is therefore dismissed.