Practice and Procedure

R v SALLY CLARK (2003)

PUBLISHED April 11, 2003

A mother's convictions for the murder of her two children were unsafe in the light of new evidence revealing previously undisclosed microbiological reports relating to one of the children, which provided evidence upon which it was possible to conclude that the child had died from natural causes.Appeal against conviction on a reference from the Criminal Cases Review Committee ('CCRC') under s.9 Criminal Appeal Act 1995 in the light of new evidence. On 9 November 1999 at Chester Crown Court before Harrison J and a jury, the defendant ('S') was convicted of the murder of her infant sons ('C' and 'H'), aged 11 weeks and eight weeks respectively. S was a solicitor of previous good character. C died on 13 December 1996 and it was thought that he had suffered from a lower respiratory tract infection; it was treated as a case of sudden infant death syndrome ('cot death'). H died on 26 January 1998 and the findings at post mortem were indicative of non-accidental injury consistent with shaking on several occasions over several days. In the light of this C's case was reviewed and the medical evidence concluded that C's death had also been unnatural. The Crown's case was that S had killed C by smothering and that H had died by suffocation after being subjected to a violent trauma of the spine. The Crown relied on the existence of unexplained injuries on both children, similarities in their deaths and statistics from its medical expert and from a draft report by the Confidential Enquiry into Stillbirths and Deaths in Infancy that the probability of two cot deaths in one family was one in 73 million. The Court of Appeal (Henry LJ, Bracewell J, Richards J) dismissed S's first appeal on 2 October 2000. The Court held that although the trial judge had erroneously followed the Crown's approach to the statistical rarity of such double deaths, the convictions were safe in the face of the remaining overwhelming evidence. S's husband subsequently discovered the existence of records of the results of microbiological tests performed on samples of H's blood, body tissue and cerebrospinal fluid gathered at post mortem. These revealed that staphylococcus aureus ('SA') was isolated in H's stomach tissue and fluid, lungs, bronchus, throat and cerebrospinal fluid. Medical evidence advance by S concluded that in all probability H died from natural causes. It was argued on S's behalf in the second appeal: (i) that the failure to disclose the information contained in the microbiological reports meant that important aspects of the case that should have been before the jury were never considered at trial such that the convictions were unsafe; and (ii) that the statistical information given to the jury about the likelihood of two cot deaths misled the jury and painted a picture which overstated very considerably the rarity of two such events happening in the same family.HELD: (1) The evidence from the microbiological reports and the resultant medical evidence was evidence that ought to have been before the jury. That evidence might have caused the jury to reach a different verdict in respect of the death of H. The verdict was unsafe and had to be quashed. (2) It was unlikely that a jury would have concluded that they could be sure that C had died an unnatural death if the only evidence they had heard related to C. The preponderance of the evidence was that the cause of death could not be ascertained. It was the similar fact evidence relating to H's death that may have enabled the jury to resolve the doubts apparent from the medical evidence. As there was now evidence that H's death may have been from natural causes it followed that no safe conclusion could be reached that C was killed unnaturally. The verdict in respect of C's death was unsafe and had to be quashed. (3) As the Court of Appeal held on the first appeal, the statistical evidence should never have been before the jury in the way that it was. While the court did not have to fully consider it in the light of the other findings, it was likely that the use of the statistical evidence would have provided a quite distinct basis upon which the appeal would have been allowed.Appeal allowed. Convictions quashed.

[2003] EWCA Crim 1020