R v SALLY Clark
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KAY,Lord Justice Kay |
| Judgment Date | 11 April 2003 |
| Neutral Citation | [2003] EWCA Crim 1020,[2003] EWCA Crim 216 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200203824 Y3,No: 200203824 Y3 |
| Date | 11 April 2003 |
[2003] EWCA Crim 1020
Lord Justice Kay
Mr Justice Holland and
Mrs Justice Hallett
Case No: 200203824 Y3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R Spencer QC and Mr M L Chambers (instructed by CPS, Cheshire) for the Crown
Miss C P Montgomery QC and Mr J H Gregory (instructed by Burton Copeland) for the Appellant
On 9 November 1999, Sally Clark was convicted by a majority of 10 to 2 in the Crown Court at Chester of the murder of her baby sons, Christopher and Harry. She appealed against her convictions but her appeal was dismissed on 2 October 2000.
There were those, including Mrs Clark's husband, who could not accept that she had killed her children and they continued to strive to demonstrate that the convictions were wrong. In due course, records of the results of microbiological tests performed on samples of Harry's blood, body tissue and cerebrospinal fluid gathered at post mortem were discovered. These had not featured at all in the evidence at trial because all the lawyers involved on both sides were unaware of their existence. They were submitted to medical experts and this submission gave rise to expert evidence that suggested that Harry may not after all have been murdered but may have died from natural causes. This in turn cast doubt upon the jury's finding that Christopher was murdered.
This information was submitted to the Criminal Cases Review Commission ("The CCRC") with an application that the CCRC should refer the case back to the Court of Appeal. The CCRC considered the matter and made such enquiries as seemed appropriate.
On 2 July 2002, the CCRC concluded:
"…that there is a real possibility that the Court of Appeal will find that the new evidence renders Mrs Clark's convictions for the murders of Christopher and Harry unsafe."
Accordingly it referred the case back to this Court pursuant to its powers under Section 9 of the Criminal Appeal Act 1995.
On 28 and 29 January 2003 this court heard the appeal and concluded that the convictions were unsafe and must be set aside. The Crown did not seek a re-trial and accordingly Mrs Clark was released. In view of the public attention given to this case, we stated our reasons for our decision very briefly at the time but indicated that we would give detailed reasons at a later date. This judgment sets out our reasons.
The grounds of appeal settled on behalf of the appellant following the referral by the CCRC, as developed before the court, made two essential points. First and principally, the failure to disclose the information contained in the microbiological reports meant that important aspects of the case which should have been before the jury were never considered at trial. They contended that the failure to disclose the evidence and/or the existence of the new evidence rendered the resulting convictions unsafe. Secondly, they contended that statistical information given to the jury about the likelihood of two sudden and unexpected deaths of infants from natural causes misled the jury and painted a picture which is now accepted as overstating very considerably the rarity of two such events happening in the same family.
It is necessary to summarise the case that the jury were invited to consider at trial, which remained unchanged at the time of the original appeal.
The factual background
The appellant is now 36 years old and a solicitor of previous good character. She lived with her husband, Stephen, at Wilmslow in Cheshire, having married in 1990. Her husband is also a solicitor. Their first child, Christopher, was born on 26 September 1996. He was an apparently healthy baby but died on the evening of 13 December 1996 while the appellant's husband was out at an office party. The appellant called an ambulance at 9.35 pm. When the ambulance arrived, she was unable to unlock the door and was hysterical and in shock. It was apparent that the baby had been cyanosed for some time prior to the arrival of the ambulance. He was declared dead at 10.40 pm. A post mortem examination was carried out by a Home Office pathologist, Dr Williams. He gave evidence of having found bruises and abraded bruises on the body and a small split and slight bruise in the frenulum. At the time he considered that these findings were consistent with minor harm caused during the resuscitation attempts. He also found evidence of infection in the lungs and as a result he concluded that the cause of death was lower respiratory tract infection. The case was treated as a case of Sudden Infant Death Syndrome (SIDS or "Cot Death"). Following this conclusion, the body was cremated. Photographs had however been taken and slides of samples from the lungs were preserved.
On 29 November 1997, the appellant gave birth to a second child, Harry. He was three weeks premature but was a healthy baby. The appellant received counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death. From about 8.10 pm on 26 January 1998, both the appellant and her husband were at home together with their child. There came a time when Mr Clark left the room to prepare a bottle for a night feed for Harry since the appellant was supplementing breast feeding in this way. Whilst he was out of the room, the baby suddenly became unwell. Mrs Clark called her husband and then summoned an ambulance at 9.27 pm. When the ambulance arrived, Mr Clark was kneeling beside the baby on the bedroom floor. There was no sign of life. He was taken to hospital where despite further resuscitation attempts, he was pronounced dead at 10.41 pm.
Again Dr Williams carried out a post mortem examination. He found injuries, which he considered to be indicative of non-accidental injury, consistent with episodes of shaking on several occasions over several days. He concluded, therefore, that shaking was the likely cause of death.
These conclusions in relation to Harry caused him to reconsider the cause of death in respect of Christopher. He consulted others and re-examined the material that had been retained and concluded that Christopher's death had also been unnatural and that there was evidence suggestive of smothering.
On the 23 February 1998 both the appellant and her husband were arrested on suspicion of Harry's murder. In a lengthy interview the following day, the appellant gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in anyway.
On 9 April 1998 she was interviewed further in relation to Harry and was arrested on suspicion of the murder of Christopher. Having received advice from her solicitors, she decided not to answer questions. She was interviewed again on the 2 July 1998 and again on advice did not answer the questions.
The nature of the prosecution case at trial
The prosecution put their case at trial in the following way. First they pointed to a number of similarities in the detailed history of the death of each child which they suggested went far beyond coincidence. They submitted that in such circumstances where there was no evidence in each case to suggest that the child had died from natural causes, the inference could safely be drawn that the death resulted from the act of the person in whose care the child was when he suddenly became unwell, namely the appellant. The similarities were:
i). Christopher and Harry were about the same age at death namely 11 weeks and 8 weeks.
ii). They were both discovered unconscious by Mrs Clark in the bedroom, allegedly both in a bouncy chair.
iii). Both were found at about 9.30 in the evening, shortly after having taken a successful feed.
iv). Mrs Clark had been alone with each child when he was discovered lifeless.
v). In each case Mr Clark was either away or about to go away from home in connection with his work.
vi). In each case there was evidence consistent with previous abuse.
vii). In each case there was evidence consistent with recently inflicted deliberate injury.
As to factors (i), (ii), (iv) and (v), we fail to see how realistically on the facts of this case they can be thought to be any significant indication of murder. Some are open to real criticism. Babies are at thier most vulnerable in the first few weeks of their life. Therefore, it is difficult to see how any sort of adverse conclusion could properly be drawn simply from the fact that one died at 8 weeks old and the other at 11 weeks old. Children frequently spend the majority of the early part of their life in the sole care of their mother and hence it cannot in any way be said to an unusual feature for just two events to occur when the babies are in the mother's sole care. The suggestion that the coincidence of the fact that Mr Clark was out on the night when Christopher died and the fact that he was going away the day after Harry died were in some way significant is one we cannot accept. In the ordinary incidence of family life, it could be anticipated that some imprecise similarity of this kind could always be found. If there was any evidence, which there was not, that on each occasion the appellant had been distressed by the absence of her husband, we could begin to see that the coincidence of distress might be thought to be significant but otherwise we fail to see the relevance.
The third factor was that each had recently taken a successful feed. In so far as a successful feed might be considered as relevant evidence of the well-being of the child...
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Medicine And Law ' "Little Territory In Common?"
...the claim failed. But doctors can get it wrong too. Perhaps the best- known example of this is the case of Sally Clark (R v Clark [2003] EWCA Crim 1020) who was accused of killing one of her babies in 1996 and another in 1998. At her trial the prosecution had to disprove the sugges- tion th......
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Subject Index
............. 53R v Chief Constable of Yorkshire Police, ex p.Marper [2004] UKHL 39 ............................6 7R v Clark (Sally) [2003] EWCA Crim 1020....................................................................2 62R v Coddington [2005] EWCA Crim 197 ... 209R v Collier [2004] EWCA C......
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Subject Index
...2Cr App R425 . . . . . . . . . . . . . 292R v Clark (No. 1) [2000] EWCA Crim 54. . . . . . 94,111, 205–206, 316R v Clark (No. 2) [2003] EWCA Crim 1020. . . . 94,111, 112, 183, 206R v Clark (Sally), Chester Crown Court,9 November1999 . . . . . . . . . . . . . . . . . . . . . . 93R vClive B [......
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Table of Cases
.... . . . . . . . . . . 230R v Clark (Nigel Paul) [2006] EWCACrim 231 . . . . . . . . . . . . . . . 226–227, 250, 253R v Clark (Sally) [2003] EWCA Crim 1020 . . . 245R v Collins [1987] 1 SCR 265. . . . . . . . . . . . . 95, 96R v Connolly and McGreevy (1894) 1 CCC468, Ont HC . . . . . . . . .......