John Batt's address 4.7.01
Public Meeting - Conway Hall, Red Lion Square, London.
4th July 2001
On 9th November 1999, solicitor Sally Clark was convicted by a 10:2
majority, of the murder of her two baby sons. Her defence was that neither
she nor her husband had any idea why their dearly loved sons died. Some
would call them cot deaths.
Securing an acquittal in this kind of case is almost impossible because a
What is a mother doing in the dock if she has done nothing wrong?
They are told two babies have died.
And a learned professor says she murdered them.
If the mother can explain their deaths convincingly she will be acquitted.
But nobody in medical science can explain a cot death - the very phrase
means the cause of death is unknown, so what chance does an ordinary mum
If she is innocent and the jury convicts, the Appeal Court is her safety
net. Or is it?
Of 14 experts, the Court of Appeal singled out only one, Professor Sir
Roy Meadow, a celebrated hawk of child abuse, as worthy of especial
commendation. His C.V. is 4 pages long. Impressive, you might think
at the end of a distinguished career. But another expert, from
Toronto in mid-career, has a C.V. 62 pages long. He was not so
commended. He was called by the defence.
Meadow gave expert evidence that the chance of two cot deaths in a
family like Sally's was 1:73m, and then said that the deaths of babies
Christopher and Harry Clark were not natural; one of only two of 14
experts to give a cause of death. 1:73m was in every paper, on the
front pages, and haunts Sally to this day.
Let me ask you a question. What do you think are the chances of an
apparently normal solicitor, daughter of a senior policeman, married
to a solicitor, murdering her newborn baby? Have you ever heard of
such a case anywhere in the world? How about 1:73m? What do you
think are the chances of such a mother, having done it once, having a
second baby and doing it again? What do you think are the chances of
such a person, having done it twice, going on to have yet another
baby, and loving that child more than life itself? As Sally does with
her surviving son? Says who? Her father, her husband, the father of
all three babies. Those in prison where she sees that child
regularly. How about a billion to one?
The Court of Appeal accepted defence evidence that the statistic was
wrong. Here, surely, is exactly what the European Court of Human
Rights was on about in Condron. If the jury is given seriously wrong
evidence, the Court of Appeal must not second-guess it. It must allow
the Appeal. So how did they deal with that? They said this dynamite
statistic was a sideshow of which the jury would have taken little
notice. They put themselves in the place of the jury and made the
decision for them - they found it was unimportant. Was that
justified? It is not a point of law but of human behaviour; an
epistemological or psychological point, not a legal one. It is
extremely difficult for the most experienced psychologist to predict
how one person will behave, depending, as it does, in each individual,
on experience, culture, upbringing and intellectual ability. Now
multiply that by twelve. It is not hard to see why the European Court
of Human Rights decided, in Condron, that no appellate court should
try to read the minds of jurors; in any event, in this case, two
jurors voted to acquit, which, it seems to me, makes the exercise even
The statistic has now entered the lexicon of journalism. The Sun
recently gave another similarly bereaved mother headline treatment:
"It may be 73m to 1 but it happened to me". Why does a tabloid use a
headline? Do papers put stories on the front page because they are a
sideshow? No, they do so because they are the most important stories
of the day for their millions of readers; because ordinary people, who
do ordinary things like reading The Sun, sitting on juries, playing
the lottery, know that the chance of winning the jackpot are 14m to 1.
They know that 73m to 1 are astronomical odds - not sideshow odds.
Readers would have immediately known that her chances of being
innocent were five times less likely than their chances of winning the
lottery. The Prosecutor told the jury her chances of innocence were
even greater than 1:73m.
The jury was told by the trial judge that while we do not try cases by
statistics they might find this figure compelling, and something they
should take into account. Absolutely wrong. He should have told them
to take no notice of it. But that, according to the Court of Appeal
was not a misdirection. What the jury was not told, because it was
fresh evidence before the Court of Appeal, was that the chance of two
murders in the same family was 2,200m to 1, and they accepted it. Two
cot deaths in one family once every hundred years; two murders once
every three thousand years. That bogus 1:73m statistic will live on
long after Sally is free and forgotten. It was given by Meadow, the
expert the Court of Appeal and the trial Judge, singled out as
distinguished of all the experts, of whom, presumably, the jury were
supposed to take the most notice.
And, what many lawyers will not realise, is that no mother, ever since
facing two baby murder charges - and there are several charges in the
pipeline - dares ignore 1:73m, in case someone in the jury trots is
out in the secrecy of the retiring room. So it will have to be
raised, by the defence, and exposed as bogus, at every such trial in
the future. Ignoring it may make the difference between acquittal and
two life sentences. Absolutely crucial evidence for any mother tried
for murdering her two babies. That is not a sideshow.
Statistics are not my only concern. The Court of Appeal managed to
get a number of critical points wrong. Examples: They said the
expert, Williams, upon whose findings the whole prosecution case
depended, was a paediatric pathologist. He has no paediatric
qualification. They said the case against Sally was overwhelming; the
trial judge called it contradictory. The pathologist said baby Harry
had a rib fracture, but admitted that if it was a fracture there would
be damage to surrounding tissue, and there was none; it would show up
on x-ray and it did not, that if picked up the baby would scream, yet
Harry never reacted once. The Court of Appeal said that, as Sally had
no explanation for the fracture she must have caused it.
I represented Sally, in May, before the Solicitors Disciplinary
Tribunal when they refused to strike her from the Roll, but suspended her
indefinitely instead; by common consent, this was an unprecedented decision
with a solicitor convicted of two murders. The Tribunal knew that the
Court of Appeal had dismissed Sally's Appeal, confirmed that the
convictions were safe, and that Sally's domestic remedies were exhausted,
but they were so concerned by the case that they allowed her to remain on
the Roll of Solicitors.
Sally told the Tribunal - in a video - that in spite of all the
terrible things that have happened to her - losing her two beloved
babies, being convicted, losing two Appeals, serving, possibly the
rest of her life in jail, separated from her adored husband and
surviving baby boy ..she still believes in our system of justice. I
wish I could say the same.
Dr Stephen Watkins, director of Public Health at Stockport Health
Authority told the Disciplinary Tribunal, that as the recurrence rate
of second cot deaths - about once every 12/14 months - is now known,
it will soon be possible to predict miscarriages of justice to the
mothers who lose babies for unexplained reasons, on a regular basis,
before they happen. This is a terrible indictment of any system of
justice, let alone one, like ours, which is so admired.
There is no Appeal from the Court of Appeal in most cases. Points of
law of public importance are rare, and so the House of Lords is seldom
an appeal option. European Court of Human Rights can occasionally
help. It is the Court of Last Resort, because every Criminal Cases
Review Commission reference is back to it. Bob Woffinden has written
powerfully in the Times and Guardian about the regrettable tendency of
the Court of Appeal to dismiss more and more cases referred by the
Criminal Cases Review Commission. The Criminal Cases Review
Commission was supposed to be the Court of Last Resort, but it is
subservient to the court that supposedly got it wrong at the first
Appeal. That seems to me to be a good system for getting it wrong
So what is the answer? Sally Clark is not the only mother to have her
convictions for murdering two babies peremptorily dismissed by the
Court of Appeal.
What about the constitution of the Court of Appeal. At present the
appointments of Judges are random. One Judge of Sally's Appeal was
from the Family Division. Should that be a regular feature of such
appeals or is it undesirable? They have much greater experience of
child abuse than their brethren. But they also know well - because
they appear before them regularly - the few experts in child abuse who
are usually called by the prosecution in criminal cases. Is such
knowledge of one expert, from one side, a good thing or a bad thing?
Sally was defended by some of the best brains in the criminal law.
They said her Appeal could not fail on any objective assessment of the
grounds of appeal. If this can happen to a solicitor defendant,
married to a lawyer, the daughter of a senior police officer, what
hope is there for a single mother from a housing estate? What hope is
there for justice? A miscarriage of justice to somebody you have
known all her life, is a terrible thing. My recipe for avoiding even
more is simplistic: an additional ground of appeal to the Lords.
Leave to appeal would still be obligatory and that could sift out
hopeless causes. Perhaps then, such cases as Stefan Kiszco, Eddie
Gilfoyal and Sally Clark would have a better outcome. Perhaps even
more important, it would restore confidence in, and respect for the
4 July 2001