Filed: 25/01/2004

The experts have wrecked justice

By Dr James Le Fanu

The attorney general, Lord Goldsmith, must be a bold man. The logistical - and financial - implications of the vast review he initiated last week of thousands of cases of alleged child abuse is awesome enough. But that is just the beginning as then there will be all the appeals, the compensation claims for wrongful convictions arising out of the review and the clattering sound of more skeletons falling out of more cupboards than anyone can imagine.

We are dealing here with the greatest single volte face in the history of the British judicial system. He could so easily have fudged the issue, prevaricated by setting up some commission of inquiry composed of the good and great to report a few months hence, by which time the adverse publicity and public outrage might have abated. But he did not. Why?

The explanation lies in the closing pages of Lord Justice Judge's brilliant, lucid and devastating Appeal Court ruling in the Angela Cannings case, with its strongest of possible implications that Professor Sir Roy Meadow and his fellow child-abuse experts in their roles as professional witnesses have been making a mockery out of the British legal system - and that is a very serious matter.

Lord Justice Judge considered every aspect of the prosecution case in turn and found it wanting. He describes as a "travesty" Prof Meadow's inference that the extreme rarity of natural, unexpected deaths in the same family points to their having been murdered. He disputes the claim that there was a recognisable pattern in the manner of the children's deaths. He is much troubled by the complete absence of any circumstantial evidence such as signs of physical injury and almost satirical about the lack of any motive other than presupposing "an extraordinary state of mind, completely out of character, contradicted by the evidence of both family and outsiders about the love and care Mrs Cannings bestowed on her children".

These and other details were all raised by the defence during the trial but still the jury was persuaded by Prof Meadow's assertion that the circumstances of the children's deaths were "characteristic" (his own word) of their having been smothered. And they deferred to his authority because they believed he had more experience than anyone of children whose deaths were initially attributed to cot death but who were subsequently proven to have been smothered.

And what was that proof? Nothing other than Prof Meadow's assertion in the courts that there had been proof. Now, there is no difficulty in seeing the flaw in that circular, self-fulfilling argument nor its potentially devastating effect in the secretive family courts where the standards of proof are so much lower - it is sufficient merely for the expert to claim that on the "balance of probabilities" the parent is guilty for it to be so. There is no requirement to explain either what is meant by "balance" nor what those probabilities might be, and every conviction secured in this way tilts that "balance of probabilities" even further in the direction of the expert's opinion.

There are two possible explanations for this specious reasoning. The first is that the experts are too dim to realise the inappropriateness of deploying such circular reasoning in a court of law. That seems unlikely. The second is that they are so vindictive and arrogant that they thought they could get away with it - which indeed they almost did, had it not been for one serious mistake when, back in 1998, they overreached themselves in Sally Clark's case and thus set in motion the train of events that led to the scandal we are witnessing today.

The prosecution portrayed Sally Clark as a drunk and depressive who had subjected her two little boys to prolonged physical abuse before shaking them to death. There was, however, a serious setback soon after the trial began when Prof Michael Green, a forensic pathologist and key expert witness, was forced to concede that the haemorrhages in the back of the eye that he had noted at Harry's autopsy, and which he claimed were "characteristic" of shaking, were not present after all. So he changed his tack. Sally had not shaken Harry to death, she had smothered him instead.

The Appeal Court, commenting on this, noted subsequently how, during the trial, "important diagnoses and conclusions were altered", how "alleged bleeding in the brain" was found to represent post mortem artefact, "swelling of the spinal cord was shown not to be present and other bruising not substantiated". But while all this might suggest the prosecution case was weak or contradictory, Prof Meadow was on hand to claim that the chances of Sally Clark's two children having died accidentally was one in 73 million and so she must have murdered them. On that basis she was found guilty and sentenced to life imprisonment.

So yet again, the experts had brought a wicked child abuser to justice - but they had not reckoned with the likes of Sally's husband, Stephen, and her father, Frank Lockyer, a retired policeman, or his lifelong friend and retired solicitor, John Batt, or Sally's solicitor, Mike Mackay. For four long years, they, with friends and supporters, fought to overturn the malicious portrayal of Sally Clark during the trial while desperately seeking the evidence that would justify an appeal. The first appeal, to their unimaginable disappointment, failed. But still they did not give up and the second, happily, succeeded, and its revelation of the experts playing so fast and loose with their evidence and opinions finally broke the magic spell that has sustained their authority in the courts.

There are, to their credit, some doctors who, over the past few years, have sought to restrain the juggernaut of false allegations, appearing as witnesses for the defence despite the prosecution's attempt to portray them as apologists for child abuse. Thus the contentious nature of diagnoses such as Shaken Baby Syndrome and Munchausen Syndrome by Proxy on which the experts have secured their convictions has been recognised for some time, but the leaders of the profession have done nothing about it. Their shameful negligence will also become apparent in the coming months.

But the exhilarating news, quite unimaginable just a few weeks ago, is that the medical experts have finally been confounded and the threat of wrongful accusations that until recently hung over every parent in this country has finally been lifted. The British judiciary is unlikely to let Prof Meadow off lightly. He and his friends may be immune from prosecution for the consequence of the opinions they have so sedulously expressed in court, but that does not mean they cannot be charged with wasting police time and other more serious offences. Many might think that the most appropriate sentence would be that they sought to impose on Sally Clark, Trupti Patel, Angela Cannings and so many others - a mandatory life sentence.

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