The prosecution asserted that that a nosebleed that Christopher had had around the third and forth of December, was consistent with a prior attempted smothering. In their opinion, for so much blood to have got into the lungs as a result of the nose bleed, urgent hospital treatment would have been required, which they claimed the Clarks' did not seek. Evidence of a four minute phone call to a doctor however from the hotel room in which the Clark's were staying on the day of Christopher's nosebleed was presented to the court by the defence in order to prove this accusation as being wrong.
The prosecution also indicated that the cut on Christopher's lip was diagnostic of deliberately inflicted injury which suggested abuse shortly before his death. The prosecution alleged that damage to Harry's brain as well as retinal hemorrhages and a previous broken rib all indicated that he too had suffered abuse (please refer to Appendix One for full details). In response however, the defence asserted that Dr Williams had initially told police that the bruising and cut lip suffered by Christopher were due to resuscitation, but strangely his opinion had changed at trial 15.
They also argued that the blood found in his lungs did not definitely indicate smothering as it is an occurrence often found in cot death cases. The defence did not deny that the nosebleed did occur. They asserted that on the day that it took place; it was extremely unlikely that Sally would have attempted to smother Christopher as she had brought him to London to show him to friends. The defence also indicated that health officials when on home visits always recognized a strong bond of love between mother and baby, proving it highly unlikely for her to kill her child (ren)16.
In relation to Harry the defence produced findings which indicated that the conclusion of his death being "smothered" was wrong as there were no reports indicating tears to the brain nor were there reports of there being subdural hemorrhages in the spine which are classic signs of smothering17. Dr Keeling however, a prosecution expert did believe that there was damage to the brain but the defence experts Professor Berry and Dr Rushton firmly disagreed. The defence also pointed out that the evidence given by Dr Smith was not consistent with her statement.
Dr Williams's evidence on the spinal injuries was classed unreliable and it was also found that there were no retinal hemorrhages as the defence took the evidence about retinal hemorrhages to a real expert on babies' eyes, Professor Philip Luthert of Moorfield Eye Hospital in London who had found that there were not any18. The old fracture to Harry's rib which occurred between one and four weeks of age, healed naturally which the defence argued, though unexplained is not unknown in young babies and had neither caused any discomfort or in fact his death19.
Similar circumstances of the boys' deaths were also brought to the attention of the jury by the prosecution. They highlighted points such as the babies being around the same age when they died, that they were found "lifeless" around the same time and that at each time the babies were found, Sally was alone20. The prosecution also used circumstantial evidence against Sally as they claimed that she was a career girl that she was depressed because of moving across the country and she was found of consuming alcohol which were possible explanations as to why she would want to kill her sons.
The infamous statistic produced by Sir Roy Meadow that the probability of two cot deaths occurring in one family was one in seventy three million was also used against Sally Clark. He claimed that, "Even when an infant dies suddenly and unexpectedly in early life and no cause is found at autopsy, and the reason for death is thought to be an unidentified natural cause (Sudden Infant Death Syndrome – SIDS), it is extremely rare for that to happen again within a family. For example, such a happening may occur 1:1,000 infants therefore the chance of it happening within a family is 1:1,000,000.
Neither of these two deaths can be classed as SIDS. Each of the deaths was unusual and had the characteristics of a death caused by a parent. "21 In defence to Meadow's statistic, Professor Berry pointed out that the risk of a child dying of SIDS was inherently greater in a family that had already had a SIDS death. Dr Rushton also responded to 'Meadow's Theory' by saying, "… While the occurrence of two unexplained sudden infant deaths in a family always raises concerns as to whether or not there is an unnatural cause of the deaths, there are families in which such deaths do occur following unexplained but presumed natural causes.
" 22 As SIDS or 'cot death' was extremely under-researched, it was therefore much harder for Sally Clark's defence team to prove her innocence as the jury found the accused guilty for the murder of Christopher and Harry (Please refer to Appendix One for full details of the trial). One reason for this may have been the importance that the jury had placed on the 'expert' evidence and 'statistic' given by Sir Roy Meadow because of the extremely high status that he had gained for the research he had carried out on Munchausen's syndrome by proxy, where parents draw attention to themselves by harming their children.
Sally's defence team applied for an appeal on the grounds of severance, the direction of similar fact evidence and the use of statistics. It failed on the first two grounds in that it was held that the judge's ruling on severance was legally impeccable and that the jury cannot have been led into thinking that they were being directed to follow the prosecution approach. An appeal was however granted on the use of statistics (please read from section seventy eight, appendix one for more details)
Roy Meadow was heavily criticized for producing the statistic that the odds of one family suffering the loss of two babies through cot death are 'seventy three million to one' as not only was it was prepensely wrong but it also made it increasingly harder for mothers to prove their innocence for the 'unknown' death of their child. The Royal Statistical Society asserted that Meadow should never have acted as an expert statistician when quite simply he was not. Peter Donnelly, a professor of statistical science at Oxford University said "It is poor science. It is not rigorous, it is just wrong"23.
Professor Meadow's opinion as to the deaths being unnatural was founded in part on the statistical evidence cited in breach of the guidelines R v Doheny & Adams (1997) in which the judge failed to warn the jury against the "prosecutor's fallacy" which was referred to in R v Deen Times (1994). "Meadow's fallacy" therefore sufficiently satisfied the requirements for an appeal. On appeal, the judge accepted that inaccurate statistical arguments had been made but did not quash her conviction on the grounds that Meadow's statistic had not misled the jury: "(We) are not persuaded that… the Crown…
submitted to the jury that the odds against the appellant being innocent were seventy three million to one against. The 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 one in seventy three million figure would have gone as an unnecessary distraction. That there was no such application suggests the lack of impact of (the one in seventy three million figure quoted in the summing up)" 24 In January 2003, new ground breaking evidence was discovered which was used in Sally's defence.
Research carried out by Dr Drucker in Manchester University identified a "cot death gene". He worked on the theory that cot deaths happen because the babies' defences against infection do not kick in when the mothers' own defence system in their blood fades after eight weeks which leaves leaving them vulnerable to infections25. He called for changes to make sure consistent tests are done and that tissue and blood samples are taken when babies die to ensure other mothers are not wrongly accused in the future. This theory was therefore relevant to Sally's defence as it explains a possible reason for the death of Christopher and Harry.
The most significant and vital evidence however which would set Sally free were the medical reports discovered by Mr. Clark which had been withheld from the prosecution, police, defence and jury by Dr Alan Williams. These "secret" reports showed the presence of the staphylococcus aureus bacteria in Harry's central spinal fluid, physically proving that the infant was not in fact a victim of murder and that Sally was in fact suffering a miscarriage of justice 26. (Please refer to section 111-125, appendix two for more details) The counsel drew attention to the observations of Lord Bingham in Pendleton (2002):
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe. "