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Miscarriages of Justice
Mistakes are a common occurrence every day for many people. These mistakes can be tiny, like putting the remote control in the fridge, and will have no real effect or impact on the individual making them or they can be serious mistakes, like providing false testimony in a court case, and these will have a detrimental impact to all those involved. In the criminal justice system any mistakes can have extreme consequences and can cost an innocent person their freedom and in the past their lives. This is called a miscarriage of justice. The purpose of this paper is to look at one miscarriage of justice case and provide a critique of the issues present in this case. It will begin with a brief definition of what is meant by the term miscarriage of justice and how these can occur. Following this will be a summary of the chosen case, highlighting the issues that led to this miscarriage of justice. Finally, it will look in more detail at these issues, how they arose and how they can be prevented from happening in the future.
A miscarriage of justice, sometimes called a wrongful conviction, can be defined as ‘a failure to achieve justice’ (Oxford Dictionaries, 2018) and relates to ‘a person being punished by the law, in court, for a crime they have not committed’ (Cambridge Dictionary, 2018). Over the years there have been a number of high profile cases involving miscarriages of justice, such as; the Birmingham Six, the Guildford Four, the Maguire Seven, Stefan Kiszko, Barry George, Suzanne Holdsworth, Angela Cannings and many more. In these cases, the individuals involved spent time in prison, often many years. Every prison in the UK will have prisoners claiming to be innocent and a victim of a miscarriage of justice, but until they have lodged a successful appeal against their conviction they will remain an alleged victim of a miscarriage of justice (Naughton, 2006).
In order to claim a miscarriage of justice the individual must lodge an appeal against their conviction. In most cases this appeal will be unsuccessful and at this point the case will be referred to the Criminal Cases Review Commission (CCRC) who since their introduction in 1997 have referred 650 cases, of the 630 appeals heard by the courts 422 appeals have been allowed and 195 have been dismissed. Once referred to the CCRC they will investigate and if there is new evidence that could prove the wrongly convicted party innocent, or a belief that a second appeal could be successful then the case will be referred back to the court for a retrial of sorts (CCRC, 2018). Miscarriages of justice can arise for a number of reasons, including; the police failing to carry out a thorough investigation; the CPS incompetently preparing the prosecution’s case; poor legal representation from either the defence or the prosecution; and questionable expert testimony (Samuels, 2009, and Savage and Milne, cited in Newburn et al., 2011).
It was expert witness evidence that led to what has been called a spectacular miscarriage of justice in the case of Sally Clark. In 1999 Sally Clark was given two life sentences for the murders of her two children. Christopher, the eldest child, was born in September 1996 and died 11 weeks later. An autopsy was carried out by Dr Williams who ruled the death natural causes or SIDS (Sudden Infant Death Syndrome). Sally had a second son born in November 1997, who died in a related way aged just 8 weeks. It is reported that Sally, aware of a possible underlying genetic condition that led to both deaths, requested a specialist pathological examination on baby Harry, a request that was also made by the hospital paediatrician. This request was ignored and the autopsy was performed by the local Home Office pathologist Dr Williams. After a long delay Dr Williams reported finding signs of baby shaking and referred the case to Professors Meadow and Green for their opinion based on the medical findings. Although agreeing with Dr Williams’ findings Professors Meadow and Green cautiously recommended the cause of death as unascertained. At this point Dr Williams revisited his findings from Christopher’s death and ruled his death due to smothering. This led to the arrest of both Sally and Steve Clark. Sally was charged with murder of both children and Steve was released with no further charges (Lockyer, 2000).
Over the next 14 months the prosecution sought support from Dr Smith and Dr Keeling, while the defence selected a team of 8 paediatricians and pathologists, each with their own specialisation. The evidence used in this case was based on testimony from medical experts, such as Dr Williams, pathologist, Professor Green, professor of forensic psychology at Sheffield University enlisted by Dr Williams, and Professor Roy Meadow, a respected expert in the field of child abuse and Professor of Paediatrics and Child Health at St James’s University (Dyer, 2003) as well as the autopsy reports from both babies. After a 17-day trial Sally received two life sentences for the murders of her two sons. The first appeal lodged by Sally was unsuccessful. However, it later transpired that essential evidence was withheld from the defence and due to this evidence the second appeal in 2003 was upheld and Sally was released from prison after serving 3 years of her sentence (Scheurer, 2018). The court of appeal stated that even without the new evidence they would have reversed Sally’s conviction on the grounds of unsound evidence provided by an expert witness.
In the more complex and serious criminal cases the evidence collected and presented can be hard to understand, so as a member of the jury having an expert on hand that can explain things can be extremely helpful. For this reason, the use of expert witnesses in criminal trials has increased. But as can be seen in the case of Sally Clark the use of expert witness testimony can bring with it its own problems. Any person giving information, knowledge or opinions in a court room is considered a witness. There are two types of witness; witnesses of fact and expert witnesses (Academy, 2018). The former may only provide evidence that is as far as they know true/factual, such as an innocent bystander giving their version of events. Whereas the latter can provide evidence of fact but can also provide an opinion that is within their field of expertise. Expert witnesses are those who due to their training, education, skill or experience are considered to have specialised knowledge in a particular field, knowledge that the ordinary person would not have (iNBRIEF, 2018). Phillips (2011) found that the miscarriages of justice cases reviewed in recent years that are attributable to expert witness evidence fall into two categories; the first category involves cases where the expert witness misled the court on purpose by providing incorrect or incomplete information or omitting certain parts of the information, such as was seen in the Maguire case where the expert misled the court as to the accuracy of a scientific test used in the case; and the second category involves expert witnesses that stray outside their area of expertise and provide information on areas that they are unaccustomed to and unqualified in to make valid and reliable claims about, such as in the Clark case (Phillips, 2011). Sally unfortunately suffered elements of both categories.
The most damming evidence in the case of Sally Clark came from three expert witnesses’ Dr Williams, Professor Green and Professor Meadow, and highlighted some very real concerns around the use of expert witnesses in criminal trials.
The first of these concerns arises when an expert has a change of opinion. This is not an uncommon occurrence as the case progresses and new evidence is uncovered. A change of opinion can occur for any number of reasons, the first being the initial testing was completed poorly, the second being that the experts’ initial evaluation was poor. A final reason can be seen in the Clark case, where Professor Green originally agreed with the pathologists reports that retinal injury was due to the baby having been shaken but after meeting with a retinal expert he reconsidered the alternative opinion and conceded that the retinal damage was in fact caused post mortem, a fact that was missed due to poor slide presentation (Wilson, 2018). At this point Professor Green recanted his previous statement and instructed his evidence at committal to be totally disregarded, and at the same time offered an alternative possibility of smothering as the cause of death. An expert changing their opinion does not necessarily mean there will be a weakness in the case because of it, in some cases the change of opinion can in fact strengthen the case being made. This was not the case for Dr Williams whose change of opinion was referred to by the Court of Appeal as ‘wholly unacceptable’. In his original report Williams referred to a respiratory tract infection as the cause of Christopher’s death, yet when he came to trial, 14 months later, he not only changed his diagnosis he completely ruled out infection as a possible cause of death and cited smothering as the cause of death. As stated a person has the right to change their opinion when presented with more facts, but in cases where the expert witnesses express a change of opinion merely providing an explanation as to why the change and where possible evidence that supports the change will suffice, something that Dr Williams was unable to do, simply stating that he hadn’t considered the results of Christopher’s post mortem fully the first time round due to not having enough time. This action rightfully so calls in to question the competency of the witness.
The second source of error, arising from Dr Williams, is poor forensic investigation methodology. At the autopsy he performed microbiological tests on Harry’s blood, body tissue and spinal fluid. Neither the prosecution or the defence used these test results in trial as neither was aware they even existed. Lord Kay expressed the fear that these tests could have proved Harry’s death to have been caused by something other than smothering (Lord Kay, 2018). In the very least the results from these tests could have cast doubt in the jury’s mind as to the true cause behind Christopher’s death (Wilson, 2018). Here is a failing that could have been avoided with a simple unified system that states all suspicious infant deaths should have these tests run on them no matter what the circumstances of the death are. Additionally, it should be down to the pathologist to ensure that both the prosecution and defence receive copies of the full autopsy report and all test results before the trial begins. When asked why these test results had not been disclosed Dr Williams claimed it was not his job to refer to tests that are not relevant to the cause of death (Wilson, 2018). The court of appeal ruled this ‘wholly unacceptable’ a feeling that was echoed throughout the ensuing case brought by the medical council against Dr Williams. Williams was also found to have failed in the obtaining of photographic evidence. Responsible for taking photographs of both babies’ bodies Dr Williams catalogued the injuries on Christopher, the split lip and bruising, however the court of appeal found that the photographic evidence obtained was of unsatisfactory quality and unusable as evidence. This shows that not all evidence collected can be successfully used and in order to ensure its use it must meet a specific standard and be collected in an appropriate manner.
The final source of error arose from the Professor Meadow, a paediatric pathologist, who was asked to assess the probability of two cot deaths occurring in one family. At the time professor Meadow was undertaking a confidential study, into SIDS or cot death, that had identified a number of factors that might be associated with an increased risk of SIDS. These factors included the presence of a smoker in the household, the age of the child’s mother and whether the household had a wage earner present. Meadow cited the report’s findings of a risk of a SIDS death in a household with none of these factors, as in the case of Sally Clark, as being 1 in 8,543 and in order to obtain the probability of two sudden infant deaths in the same household you would square the original figure, thus coming up with a 1 in 73 million chance making the event extremely rare. The royal statistical society and the author of the report this figure was taken from both refuted this statistic as being invalid under the terms laid out by Professor Meadow and having no statistical basis (Royal Statistical Society, 2001). Meadow effectively walked the jury in to committing the prosecutors’ fallacy, whereby, showing that the innocent explanation, two SIDS deaths, is highly improbable the jury deduce the guilty explanation as the correct one (Scheurer, 2018 and Joyce, 2002). Likening the odds to backing the 80-1 horse at the Grand National and winning four years in a row the jury members could imagine this figure as an impossible occurrence and this effectively sealed the fate of Sally Clark. This falls in to the category described earlier by Phillips of an expert acting outside their area of expertise (Phillips, 2011). Professor Meadow although a renowned paediatrician was not a statistician and the medical council agreed that he had acted beyond the limits of his expertise when they struck him off the register to practice medicine (Dyer, 2005). It is widely believed that it was this evidence from Meadow that convicted Clark.
Since the case of Sally Clark there is now a comprehensive set of rules, codes, guidelines, standards, practices and judicial decisions that affect the role and duties of the expert witness. Despite this there are a few problems that are still not covered and need to be addressed to secure the public trust in the use of the expert witness. These problems include: when to instruct the use of an expert. Should they be instructed at the start of the case or later on towards the final trial date. It can be argued that the earlier the expert is instructed the greater chance of any issues being identified, while the later the expert is involved could be a well-timed move to promote early settlement. Another problem with the use of expert witnesses is the use of single joint experts (SJE). The use of the SJE is still rare but by using one expert in the field of interest could be financially fiscal, it would also reduce experts in the same field from effectively arguing against each other in the court room (Samuels, 2016). Some other considerations to be made when utilising an expert witness include; when to disclose, simultaneously or sequentially disclosure; the meeting of experts; permissions granted by the court about evidence submitted by experts; and the reduction in finances for legal aid, and thus for experts to testify, which may result in substandard experts providing evidence in a substandard manner.
This paper has looked at miscarriages of justice, specifically related to the case of Sally Clark and the expert witness evidence used in her trial. The paper has aimed to show that despite their increasing use expert witness come with inherent problems. It has been shown that there are many failings from expert witnesses that lead to miscarriages of justice, including changes in opinion, withholding or omitting evidence and providing evidence outside the scope of their expertise. As has been shown here there are risks when relying upon expert testimony in criminal trials and that these risks have and will continue to arise whilst expert testimony is used. The use of expert testimony will continue to grow alongside advances in technology and methods used. Due to this imminent rise there should be a set standard applied to all experts providing testimony, the same fitness to practice test, and this should be re-evaluated annually to allow for changes in the law, procedures or the expert themselves. Only in this way will we see less cases of miscarriages of justice.
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