In the Court of Appeal (Criminal Division)

STRICTLY EMBARGOED UNTIL 10.30 A.M. ON TUESDAY 28TH JANUARY 2003

IN THE COURT OF APPEAL (CRIMINAL DIVISION)2002/3824/Y3

IN THE MATTER OF A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION

THE QUEEN

v.

SALLY CLARK

Appellant

______

SKELETON ARGUMENT ON

BEHALF OF SALLY CLARK

______

1. For nearly three years after the death of Harry Clark, his mother Sally Clark, her lawyers and their medical advisers believed that there was not any evidence of infection or any possible natural explanation of his death. The cause of his death was mysterious and, in the language of the medical profession, “unascertained”.

1. At the end of 2000 it emerged, for the first time, that there was clear evidence of an infection with staphylococcus aureus that had spread as far as Harry’s cerebral spinal fluid (CSF). This fluid should be sterile in a healthy child, protected from harmful substances in the blood by the blood brain barrier. The evidence of this infection had been known to the prosecution pathologist, Dr Williams, since February 1998. He had kept the results secret from Sally Clark and her advisers.

1. This is a clear case of non disclosure by the prosecution. This non disclosure has caused a serious miscarriage of justice. The microbiological test results on Harry Clark demonstrate that, in all likelihood, he died suddenly, in reaction to the staphylococcus aureus bacteria with which his stomach, lungs and CSF were riddled.

1. It requires no degree of expertise to realise that the test results should have been revealed by Dr Williams and not kept secret. It is obvious that, if the results been made known at trial, Sally Clark would not have been convicted of murdering Harry or his dead brother, Christopher.

1. It is a matter of regret that the prosecution has failed to accept that there has been any material non disclosure in this case. Instead an attempt has been made to minimise the importance of the microbiological test results. This has wholly failed. It is plain even from the statements made by the prosecution expert witnesses, that the results were material, in the sense described in R v. Judith Ward[1], in that they might arguably have assisted the defence at trial.

1. Each of the prosecution experts has conceded that it is possible that Harry died of acute staphylococcal infection. The area of disagreement between the prosecution and defence experts is the degree of likelihood to be attached to that possibility.

1. Dr Keeling’s conclusion is; “The concept of an infectious cause of death was not considered by any of the experts at the original trial. Now that the concept of infection has been introduced it is important to appreciate that the case for infection is being made on the basis of positive cultures. Positive cultures alone are not sufficient evidence of the presence of disease; they can be artefactual as the result of contamination.[2]” (Emphasis added).

1. Dr Klein’s opinion is that; “While there is no doubt that the sequence of events as described [by Dr Morris of an infection and toxic reaction causing bleeding] could occur in an infant of Harry’s age it would be exceedingly rare in an otherwise healthy individual.[3] ”

1. Dr Wilson concludes that, in his view, the staphylococcus must have spread in the blood stream before Harry’s death. The absence of toxins does not exclude the organism being contributory to death. The white cell response in the CSF is probably related to a bleed but the presence of early meningitis is not excluded. “S. aureus and/or its toxin is suspected to be a cause of SIDS but the mechanism has not been elucidated. It can cause petechial haemorrhages secondary to circulatory failure and toxin release.[4]”

1. An attempt has also been made by the prosecution, in the alternative, to say that the biochemical tests were so obviously flagged that they were effectively disclosed and it is the fault of the defence that the results were not discovered.

1. Finally and bizarrely it is suggested that the results were known to the defence but were discounted or disregarded because they were irrelevant.

1. The last two suggestions may be rapidly disposed of. In his second affidavit, Michael Mackay has confirmed that none of the defence lawyers were made aware of the results[5]. This mirrors the position of the CPS which asserts that none of the prosecution lawyers knew of the results[6].

1. The assertion by the CPS is accepted, subject to the caveat that any prosecution lawyer who inspected file 89 at court (in which the results were probably stored[7]) may have become aware of the results and should then have disclosed them.

1. The prosecution skeleton disingenuously suggests that the test results “were always available for inspection”[8]. This is not true. The results may, as it transpires, have been available for inspection by the prosecution in police file 89. However that was not a file that was ever listed in the prosecution list of used and unused material. It was not “available” to be inspected by the defence lawyers in any meaningful sense of the word.

1. The prosecution also suggest there was disclosure because the fact of testing was revealed, even if the results were not[9]. This suggestion is wrong. Disclosure is not meant to be a game where the defence guess what may be relevant with the benefit of hints dropped by the prosecution. Unless and until the existence of positive microbiological results are made known to the defence and copies of those results are supplied or inspection invited, they cannot be said to have been disclosed.

1. The prosecution argument appears to have overlooked the fact that the professional and legal obligation to effect disclosure by providing copies or inviting inspection has been clear for more than 20 years. The old Attorney General’s Guidelines[10] required disclosure to be effected by provision of a copy, either by post, by hand, or via the police. If the unused material exceeded about 50 pages or was unsuitable for copying, the defence solicitor had to be given an opportunity to inspect it at a convenient police station or, alternatively, at the prosecuting solicitor's office. The House of Lords has held (in overturning the rule in Bryant and Dixon)[11] that the common law requires the physical disclosure of police witness statements by the provision of a copy. The Criminal Procedure and Investigations Act 1998 (the CPIA) requires disclosure to be effected by copying the information to the defendant or, if that is not practicable or desirable, allowing the defendant to inspect it[12]. The decision in R. v. X Justices ex parte J[13] has made it clear that there is in all criminal cases a strong presumption in favour of the provision to the defence in good time of copies of all copiable exhibits. It is for the prosecution to displace that presumption. No factors justifying the displacement of that presumption have been identified.

1. So far as the defence medical experts are concerned, all bar Professor Emery (who died before the results were disclosed) have been contacted. Each has confirmed that results were not disclosed by Dr Williams or seen by them in the course of the case.

1. Professor Berry has said in terms he was never told about the results. Indeed he seems to have been misled into believing that there was a negative result in relation to the microbiology tests performed on Harry. In his report dated 3.9.99, he stated that neither Harry nor Christopher “showed any symptoms in life, nor was the mode of their death compatible with infection. All tests for infection were negative with the exception of the unremarkable finding of Staph. aureus in the respiratory tract of Christopher.”

1. Contrary to the suggestion by the prosecution that his opinion would have been unaffected by knowledge of the results[14], Professor Berry has made it clear that the results were “very unusual” and would have had a significant impact on his opinion as to the cause of Harry’s death[15].

1. Dr Rushton is equally confident that he was not made aware of the results at the time of the trial. Had he been he; “would certainly have investigated the significance of the isolation of the staphylococcus by consulting my microbiological colleagues”. He has concluded on the basis of the reports now available from the defence micro biologists that the death of Harry was due to staphylococcal infection[16].

1. Professor Luthert has also confirmed that he was not aware of the results. He described the situation on non disclosure to Mike Mackey as “blood chilling”[17]. He has also stated that he would have no difficulty in reconciling the episcleral haemorrhages at the back of Harry Clark’s eyes with death arising from septicaemia.

1. Professor Whitwell has confirmed that she was not told of the results[18]. She understood Dr Williams assertion to the effect that there was no evidence of disease to be a confirmation that the microbiological results were negative.

1. Each of these experts has also confirmed that they relied upon the prosecution doctors to disclose all relevant results. This is obviously the proper approach, both as a matter of law and as a matter of common sense. The only contrary suggestion comes from Dr Keeling who herself failed to seek the results. She excuses that omission by reference to her late involvement[19]. This is not an issue that needs to be resolved for the reasons set out in the Defence Note of November 2002. If this is not a case of prosecution non disclosure, it is a fresh evidence case in which relevant and credible fresh evidence is now available.

1. Professor David (the court appointed expert who gave evidence for the defence with the leave of the family court judge) has been contacted by prosecution counsel. Following that contact prosecuting counsel has suggested that the results may have been disclosed to Professor David because “it is still not known for sure whether the microbiology results were in fact in the papers supplied to Professor David[20].” Given Professor David’s response in his letter dated 6th December 2002[21] this seems a far fetched basis on which to claim the tests results were disclosed.

1. Professor David has been explicitly dismissive of the prosecution suggestion that the results may have been disclosed to him, but ignored, because he regarded them as irrelevant. His letter states:

“What is so extraordinary is that these results were obviously of special interest to the pathology department to the extent that the samples were actually sent away to the headquarters of the public health laboratory service for further testing and yet, despite this step being taken, none of the results were disclosed. The PHLS in Colindale is the national reference laboratory for microbiology and I am at a loss to understand how all these results and laboratory data did not come to be passed into the care proceedings papers. There is no doubt that had these results been available, I would have referred to them in my report and I would have investigated their possible significance further not only in relation to the death of Harry but also the death of Christopher.”

Non disclosure

1. Unfortunately this case demonstrates that the lessons that should have been learned, as a result of the decision of the Court of Appeal in Ward[22], have not been. The duties of the prosecution and of the forensic experts instructed by the Crown were spelt out in clear and uncompromising terms in Ward. The scope of that duty has not been affected by the coming into force of the CPIA since the CPIA does not affect the common law duty of disclosure of expert witnesses, see Archbold 10-68.

1. The Court in Ward dealt with the critical importance of ensuring that there is a proper understanding of the nature and scope of the prosecution's duty of disclosure in relation to expert scientific witnesses. The prosecution barrister in that case had suggested that the problem was solved by the Crown Court (Advance Notice of Expert Evidence) Rules 1987 that enable the legal representatives of a defendant in a Crown Court criminal case to require the prosecution by notice in writing to provide in respect of scientific evidence a copy of (or an opportunity to inspect) “the record of any observation, test, calculation or other procedure on which (any) finding or opinion is based.” The Court observed: “The new rules are helpful. But it is a misconception to regard them as exhaustive: they do not in any way supplant or detract from the prosecution's general duty of disclosure in respect of scientific evidence. That duty exists irrespective of any request by the defence. It is also not limited to documentation on which the opinion or findings of an expert is based. It extends to anything which may arguably assist the defence. It is therefore wider in scope than the rule. Moreover, it is a positive duty, which in the context of scientific evidence obliges the prosecution to make full and proper enquiries from forensic scientists in order to ascertain whether there is discoverable material. Given the undoubted inequality as between prosecution and defence in access to forensic scientists, we regard it as of paramount importance that the common law duty of disclosure, as we have explained it, should be appreciated by those who prosecute and defend in criminal cases. And, if difficulties arise in a particular case, the court must be the final judge.[23]”

1. Even for a layman it should have been readily apparent that the microbiology tests results might raise two or more medical issues in connection with the death of Harry Clark. The first obvious issue was whether the results indicated staphylococcus aureus infection. The second issue was, assuming that there was an infection, what effect might that have had on Harry’s condition.

1. In Keane[24] the Lord Chief Justice made it clear that the documents that must be disclosed as 'material' are those that can be seen; “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).[25]”

1. Any qualified medical practitioner or prosecutor who was shown the microbiology results ought to have appreciated that they might possibly raise issues in the case of Sally Clark, whose existence would not be apparent from the evidence the prosecution proposed to use.

Good faith?

1. It is submitted that the non disclosure must have been deliberate, since it is to be assumed that the prosecution asked appropriate questions to ascertain whether there was discoverable material in Harry’s case. Questions such as: “Are there any test results relating to Harry Clark that have not already been disclosed?” must have been posed. The prosecution must have been told, wrongly, that there were not.

1. This appears to be the explanation for the assurance given by the solicitor to the Police Authority (following discussions with the CPS and DI Gardiner) in April 1999 that there were no further autopsy reports other than those already disclosed[26].

1. It is appears that responsibility for the deliberate non disclosure lies with Dr Williams. He was the sole named recipient of Dr Wills’ reports. He is most likely to have provided the false or misleading information that the CPS and Police Authority solicitor relied upon.

1. Dr Williams’ explanation for his failure to disclose the reports is wholly unsatisfactory. His claim to the meeting of experts that there was no evidence of infection in Harry’s case[27] was, on its face, untrue. His present position is equally incredible[28].

1. On one view the question of Dr Williams’ credibility may be something of a side issue for the reasons identified in the Defence Note of November 2002. If the Court concludes that the microbiology results were not disclosed and that the expert opinions now obtained, commenting on the relevance of the results, amount to credible fresh evidence going to a relevant issue in the trial, then the appeal should be allowed.

1. However it is submitted that the fact of a deliberate non disclosure will impact on Dr Williams’ credibility, competence and claimed impartiality. This is of significance since the majority of the critical points in the prosecution case depend upon disputed and inadequately documented ‘findings’ by Dr Williams.

1. Thus the case on Christopher in relation to the ‘nick’ in the frenulum and the presence of abrasions or bruises depends entirely on Dr Williams’ evidence. Without that evidence, the only relevant medical evidence relating to Christopher that was properly recorded and capable of being independently investigated were the slides of Christopher’s lungs showing bleeding and haemosiderin and the test results relating to Christopher’s blood chemistry. No expert has suggested that the slides of the lungs are capable of establishing a case of murder. At its highest, the presence of bleeding merely requires close attention[29]. In the absence of any other material it is not does not establish the cause of death.

1. Dr Williams’ credibility is also of acute significance in Harry’s case.