On appeal, therefore, Sally Clark was freed from prison after three years but "if the results had been made known at the trial, Sally Clark would not have been convicted of murdering Harry or his dead brother Christopher" 28. The Court of Appeal also held that they were quite sure that the statistical evidence should never have been before the jury in the way that it was when they considered their verdicts but if there had been a challenge to the admissibility of the evidence, then the judiciary would have excluded it altogether (please refer to section 177, appendix two for more details).
Sally Clark's case therefore became a benchmark in preventing further miscarriages of justice in court proceedings through the use of expert witnesses and the weight attached to their evidence. Sir Roy Meadow was called as a witness to provide his knowledge in relation to pediatrics as he was expert in this field. He, in addition to this, however provided the court with statistical data as he claimed that the odds of one family suffering the loss of two babies through cot death were 'seventy three million to one'.
It was held in Turner (1975) that evidence given by expert witnesses must be of their own fields of experience29. As Meadow is not an expert statistician, he therefore provided information quite simply that he should not have which is legally unacceptable. It was also held in National Justice Compania Noviera v Prudential Assurance that an expert should tell the court if they did not have experience of a certain area being questioned or if they had insufficient information on which to base a properly researched conclusion, which in the case of Clark, Professor Meadow did not30.
In Ahluwalia, which concerned a woman who was a victim domestic violence being convicted for the "provoked" murder of her husband, it was held that the trial judges should be able to separate what is deemed as good science from that which is deemed bad31. In R v Clark however, the trial judge failed to separate Meadow's wrong statistical data from relevant data which could have influenced the decision of the jury due to the high status that Roy Meadow possessed at that time.
It was only in her first appeal that the judges accepted that there were inaccurate statistical arguments but in their opinion, however they believed that the seventy three million to one figure would not have misled the jury. It was held in Maguire (1992) that materials which may have some bearing on the offence charged and the surrounding circumstances of the case including the results of all tests, must be made known to the disclosure officer. In the case of Clark, pathologist Dr Alan Williams failed to disclose vital evidence which indicated fatal bacteria in Harry's system and thus a valid reason for his death.
The importance of disclosing all relevant evidence, as held in Maguire, was reiterated in Ward (1993) as the Court of Appeal held: "Our conclusion overall on the three heads of appeal is therefore that, in the failure to disclose evidence, some in the possession of the police, some in the possession of the scientists and some in the possession of the DPP, there were material irregularities at the trial; and that, having regard to that nondisclosure added to the fresh evidence we have heard, the convictions were all unsafe and unsatisfactory.
We therefore allow the appeal and quash the convictions of Miss Ward on all counts. "32 Dr Williams was also in breach of section twenty seven of the Criminal Justice Act 2003 as he failed to truly testify to his findings as well as providing a cause of death (please refer to appendix three to access this section of the Criminal Justice Act 2003). He also violated the Criminal Procedures and Investigations Act (1996), for which he was punished by the General Medical Council for serious professional misconduct.
The acquittal of Sally Clark, which was two years ago (29th January 2003), has had a major influence on court proceedings which involve children in both the Criminal Courts and Civil Courts. Her case caused the Courts to question the reliability of expert witnesses in trials. The expert evidence given by Sir Roy Meadow which was proved to be a fallacy in Sally's case provided hundreds of other mothers the opportunity to stand trial once again in an attempt to prove their alleged innocence.
It was the case of Angela Cannings however, who appealed her conviction of the murder of her children in light of Sally Clark's acquittal that was the ultimate benchmark for law reform. The decision to quash the conviction in Clark and Cannings, which was taken by the criminal division of the Court of Appeal, also caused the civil courts to question the issues of credibility of expert medical evidence and the necessary standard of proof where Munchausen's Syndrome by Proxy was diagnosed.
The Civil courts were therefore asked to consider the impact of the Cannings and Clark decisions where the making of a care order relies heavily upon the expert evidence as well as the relevant standard of proof as in Criminal courts it must be "beyond all reasonable doubt" and in Civil courts it rests upon "the balance of probabilities". It was held in the appeals of Re: LU and Re: LB that when approaching more difficult cases, judges should refer to Lord Nicholl's speech in Re: H (minors) Sexual Abuse (1996 AC 536) in which he laid down guidelines in relation to the standard of proof.
R v Clark also provided our courts with important issues to consider when considering evidence at a trial. These were that recurrence is not, in itself, probative, that particular caution is necessary in any case where the medical experts disagree, that the court must always be on guard against the over dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice and that the judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts.
The most significant change to the law however in relation to R v Clark and R v Cannings is that a jury is no longer entitled to convict and a guilty verdict cannot be deemed safe unless a natural cause of death, whether explained or unexplained, can be excluded as a reasonable possibility in a criminal trial for murder in relation to sudden infant deaths. Lord Justice Judge concluded in Cannings that in cases like hers 'If the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.
If a murder cannot be proved, the conviction cannot be safe. It is simply not enough to be able to establish even a high probability of guilt. ' 33 Although, there has been numerous changes made to the law in relation to Sally Clark's miscarriage of justice, it is still clearly evident that there is room for improvement as for example, the issue as to whether one expert should be able to hold the key to the decision making process has still to be resolved.
I also believe that there should be stricter penalties, through legislation, for expert witnesses who fail to disclose relevant evidence to a case. In R v Clark, Sally and her husband were denied significant evidence by pathologist Dr Williams, which proved her innocence. Her husband was also accused of murdering his children by shamed pediatrician Dr Southall and yet with all both Dr Williams and Dr Southall faced only a disciplinary hearing by the General Medical Council for professional misconduct.
Overall, it has only been two years since Sally's conviction was quashed and there are many more changes required through legislation in order to prevent further miscarriages of justice similar to that tragically suffered by Sally Clark. The case of Sally Clark is of extreme significance to Britain's legal system. Her case has brought to light many important factors that the judiciary must adhere to when dealing with trials associated with murder and manslaughter of children.
Her case underlines the requirement that judges must not only weigh up very carefully the expert evidence that is being given but they must also look beyond it as well as being aware of all the surrounding evidence of the case. Sally's second appeal was fundamental to other mothers who were wrongly convicted of murdering their children as it provided them with the opportunity to appeal on the ground's of "prosecutor's fallacy" in that Sir Roy Meadow's statistic that the odds of a family losing two children to cot death is "seventy three million to one", was quite simply "bad science".
The most significant outcome of these miscarriages of justice is that no longer can anyone be convicted in a criminal case on expert witness alone without proper physical evidence. This was a much needed revolutionary change to the way in which expert evidence is used in Britain's Courts. It is however tragic that it had taken the imprisonment of innocent and grieving mothers to highlight the dangers associated with expert witnesses.