5
Angela Cannings and the Frontiers of Forensic Science
When Angela Cannings walked free from the Appeal Court in London in December 2003, it was the end of a four-year nightmare. The forty-year-old had served twenty months of a life sentence after being found guilty of smothering two of her babies – but now her protestations of innocence had been heard.
What made the Cannings case especially notorious is that there could scarcely have been a better illustration of how, harking back to my mother’s comment when she found me with the Camp Coffee bottle at number 73, people see what they want to see.
For me, children are altogether more stimulating and fun than adults. When I attend large social gatherings, if there are children present I tend to gravitate in their direction, and I love devising games and imaginary stories, which repeatedly land us all in trouble. I have six children of my own, and they’re all grown-up now, despite enduring my mad moments and tomfoolery: monsters in the dark, chasing and capturing fantasy animals, putting on silly unrecognisable voices on the telephone and the inevitable dressing-up.
With each of the six there came a moment in their early lives, when they were between twelve and eighteen months old, when, seated in my big armchair, I would place them on my right foot with my legs crossed and raise and lower them rhythmically to simulate ‘Ride a Cock Horse to Banbury Cross’. They also liked – or at least I thought they liked – being thrown up in the air to free-fall back into my arms. Later the new-age baby technology replaced my right leg with a bouncer, an elastic contraption suspended from the door lintel. Strapped into a sort of harness, babies were propelled up and down, back and forth, by their tiny legs. Innocent fun? Yes – or maybe no. Given what I now know from cases regarding infant death, I wouldn’t dream of doing the same things with my grandchildren.
At an even younger age, when children are newborn, parents are faced with the dilemmas of accepted medical wisdom: do you place the baby face down to sleep, with the risk of smothering, or face up, with the risk of choking? What about the mattress? Thick or thin? Foam or not? Is an alarm of any use during the night or while you’re downstairs? You try to make informed decisions, but the one thing you know is that whatever you do it’s nearly always wrong. We all tread an extremely fine line – an inch on the wrong side and you could end up in the dock.
I felt this most acutely when I first met Angela Cannings, for whom I had been engaged as defence barrister for her trial in 2002. She had been a caring young mother with an honest and straightforward family, all of them trying to make their way without too much fuss and certainly any bother. Then, like a bolt from the blue, disaster struck. No warning. No ready explanation. Just the absolute nightmare of nightmares, from which we wake to find our lives crushed by death around us – like the brutal ten seconds of the China earthquake in 2008.
In 1989, at the age of thirteen weeks, Angela’s firstborn, Gemma, died suddenly at home. Two years later so did her second child, Jason, at seven weeks. Jade was born in January 1996 and is now a teenager. Finally Matthew was born on 5 July 1999, and Angela and her husband Terry thought the worst was behind them and they could look forward to a trouble-free future. Four months later, at the age of eighteen weeks, Matthew too was dead.
Such a sequence of events is something everyone finds difficult to comprehend. As I was to remind the jury, in the words of Oscar Wilde’s Lady Bracknell: ‘To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness.’1 So where does that leave you if it’s three? For Angela it meant arrest, charges of murder, and conviction. Nature abhors a vacuum, and so does human nature. In such circumstances we crave an explanation, and if there is no known medical cause for so many deaths, then it has to be murder.
The cause written on the first two death certificates was SIDS (Sudden Infant Death Syndrome): cot death. This acronym, however, denotes a category rather than a cause, and according to the CESDI survey,* it’s a category embracing the single largest proportion of infant deaths in the UK (at ages between one and twelve months), and means that after careful and thorough investigation, no natural or unnatural cause of death can be ascertained. This is to be distinguished from the unascertained category, which merely suggests there is insufficient evidence to reveal a known cause.2
In the Angela Cannings case, what science – and no doubt the trial jury – could not countenance were three instances in the same family. At the start Angela had been charged with the murder of the three children who had died. Prior to trial, when the case was before the Examining Magistrate whose job it is to consider whether to commit or send a defendant to trial, she ruled there was no case in relation to Gemma. The immediate cause of death for all three was apnoea – cessation of breathing – but why? If there is no discernible natural cause, then unnatural smothering appears to be all that is left.
Enter, stage left, Professor Roy Meadow, a leading light in paediatrics. He undoubtedly pioneered a better understanding of the risks encountered with that incredibly small group of parents who do cause harm to their babies – for example, those who batter their babies – but these are by no means the same group as those who commit terrible assaults on older children like Victoria Climbié, who was abused and murdered in 2000 by her guardians.
The problem for Professor Meadow was the steady transformation of warning lights into the fixed theme of guilt, for a specialism may carry within it the seeds of its own demise by creating a dogma out of signs and symptoms which should be no more than signposts or indicators. Professor Meadow crossed the Rubicon from uncertainty to certainty with his notoriously erroneous statistical assertion in the case of Sally Clark – who earlier in 2003 had been released after being wrongfully imprisoned for more than three years following the death of her two sons – that the chances of more than one death in the same family (or, put more precisely, the chances of two SIDS deaths in one affluent, non-smoking family) were one in 73 million. What Professor Meadow had done was to treat the two deaths as independent of each other and then, using the base probability of one death (which had been calculated at one in 8,500), he went on to merely square this figure to produce one in 73 million. The problem is that while this is arithmetically correct, it is statistically erroneous, because the deaths cannot be treated as independent (for example, there may be a genetic cause). Statistical research has demonstrated that while it is rare for a cot death to occur, where such a death has occurred in a family, there is a much greater risk of it happening again.
In Angela’s case all sorts of other circumstances were employed by the prosecution. The deaths all occurred while she was at home alone; she did not immediately call the ambulance on all occasions; two deaths were preceded by episodes characterised as an ALTE (acute life-threatening event), and it was also suggested that Jade had suffered such an episode, although of course she did not die. These sorts of factors are resorted to because smothering may not leave any signs of injury: no facial bruising, no haemosiderin in the lungs (the iron left behind from a prior bleed), no petechial haemorrhages (small dots) in the eyes. In the absence of these features, therefore, the question arises as to whether there is a discernible pattern of events which in itself gives rise to suspicion.
Professor Golding, an epidemiologist originally approached by the prosecution but called by me at the trial, did not believe there was one. Beside the absence of a pattern, there were no other corroborative elements: no violent predisposition in Angela, no explosions of temper, no psychological or psychiatric disturbance, not even a hint of Professor Meadow’s favoured hypothesis of Munchhausen’s Disease by Proxy, wherein a parent may self-harm or harm a child in order to gain attention for a personal, social or economic privation.
By 2002, over thirty years since my tangle with the expert witness I nicknamed ‘Tinkerbelle’, you might have thought experts expecting to give evidence would have their notes available for inspection. Well, you might, but not if you’re Professor Meadow. He had told his secretary to shred most of his research material even though there were trials pending, for reasons of confidentiality and storage. Once again we had to accept the word and memory of an expert. It also goes without saying that Meadow was unwavering in his own belief that Angela had smothered her children.
To comprehend the magnitude of this suggestion, you only have to step back a moment and imagine a loving mother, recognising that she is capable of committing the ultimate crime against her own children, going on to give birth to more children, whom she proceeds to kill. It’s nothing short of a re-enactment of the Greek tragedy Medea.
I was well aware that the task we all faced in defending Angela was monumental. In practical terms, we had to prove her innocence – which, remember, is not something that the law requires, because the onus or burden of proof is on the prosecution rather than the defence.3
I was fortunate to have a closely knit team of committed and well-informed lawyers: my junior Jo Briggs had medical science coming out of her ears and at her fingertips, while my instructing solicitor Bill Bache, a big man exuding a quiet and calm confidence, was assisted by Jackie Cameron, who gave Angela and her family unstinting support.
Every medical avenue was explored to see if there was any conceivable, viable explanation. Altogether approximately eighteen different experts were assembled, from a large number of diverse disciplines. Could there, for example, have been a cardiac problem, which gave rise to an irregular heartbeat, or arrhythmia (the prolonged QT syndrome)?4 To test for this, electrodes are attached to different parts of the body and produce different wavelengths on a graph, and I spent hours studying the output from an electrocardiogram machine.
We also looked at whether there was an immunodeficiency, which might have provided a gateway through which other potential dangers such as infection might pass. Then there was the coincidence of other infant deaths over the same period of time in the same Wiltshire village where the Cannings family lived. Could there have been clandestine environmental factors bearing on all of these children, including those in Angela’s family? Was it because they all lived near a railway line, or beneath pylons carrying power cables, or close to a disused ammunition dump? Nothing seemed to provide the answer. Maybe we were all trying too hard. Maybe there wasn’t a single explanation and we should have been engaging in a multifactorial approach.
In a sense the whole exercise was not just proving that Angela had not committed murder, but proving that murder had not been committed at all.
We did not succeed. Angela was convicted and sentenced to life imprisonment. We all have dark days, but for me this was one of the very worst, similar to the second Birmingham Six appeal and to the trial of Barry George. I spent hours trawling back over every inch of the case. Where had I gone wrong? What had I missed? You’re not supposed to take defeat personally, but in a way I do, because without that strength of feeling you can’t begin the reappraisal necessary to prevent it happening again. In retrospect, I now think we over-egged the pudding, with the result that the jury may have thought we were trying to be too clever by half.
The repercussions for Angela were unbearable. If you’re convicted of this kind of offence you get hell from other prisoners, and she faced constant abuse and assault, on one occasion having a pot of boiling tea poured all over her. Jade had already been subject to care orders and supervised visits throughout the time Angela had been waiting for her trial. Her husband Terry, who had been stalwart throughout, also faced a bleak and uncertain future. Yet as far as I was concerned, here was another client whose persistence shone through, and there could be no giving up.
We were already aware, through tracing the genealogy of Angela’s extended family, that there had been other instances of premature infant death, five altogether. We were also aware of the possibility that there may be a gene responsible for cot deaths.
Alongside our efforts, journalist John Sweeney and his BBC team undertook intrepid research – undeterred by the admonitions delivered by Lord Taylor to an earlier generation of journalists. John discovered three other infant deaths on the Irish side of Angela’s family. When the documentary Angela’s Hope was broadcast just before the appeal hearing in December 2003, one viewer was prompted to act immediately.
Angela, it turned out, had a half-sister, of whose existence she had been wholly unaware, the result of a liaison which her father had kept secret, and one of this sister’s children had had breathing problems from birth. Professor Michael Patton from the South West Thames Regional Centre at St George’s Hospital in south London regarded this as significant.
It was not, however, this development alone that won the appeal, but rather a comprehensive understanding of the science by the court itself. The appeal was upheld on 10 December 2003, and the judgment delivered by the appropriately named Lord Justice Judge on 19 January 2004 is without equal:
We recognise that the occurrence of three sudden and unexpected infant deaths in the same family is very rare and therefore demands an investigation into their causes. Nevertheless the fact that such deaths have occurred does not identify let alone prescribe the deliberate infliction of harm as the cause of death. Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to produce some convincing explanation for these deaths as providing a measure of support for the prosecution’s case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.5
The court went on to caution against future prosecutions without additional cogent evidence extraneous to the expert evidence, which tends to support the conclusion that the infant was deliberately harmed. In other words, another form of corroboration known as confirmatory material is desirable.
I had also asked the court to consider whether in cases like this it was time to require juries to return a verdict with reasons. When a court sits without a jury, a judge has to do this, and all concerned then have a better idea of where the decision-maker has gone wrong – or, for that matter, where they have got it right. With the incorporation of the European Convention on Human Rights into English law (effectively in 2000), this is precisely what a jury in an inquest may be asked to do, by describing their reasons in the form of a narrative.
At the Angela Cannings appeal, the court felt it was not necessary for the purposes of the appeal to decide this question, and left it for another occasion.
Outside the High Court, Bill Bache told waiting journalists what
we all felt about the case:
These are extraordinarily difficult matters. Still nobody knows what causes cot death, and until a good deal more information is known about that, it would seem to me that prosecutions of the kind that have been brought against her and, for that matter others, should not continue.
He added that the scientific evidence given against Angela was ‘wholly inconclusive, and that is the nub of the issue . . .’6
The anguish suffered by Angela was brought home to me even more forcibly when my daughter, Anna, telephoned me in February 2009, a few days after she had given birth to my grandson, Luca. One evening both she and her husband, Carlo, had noticed that Luca’s breathing was extremely shallow, there was a general lack of response and ‘floppiness’. These were all signs with which I had become familiar and were consistent with an ALTE. I could barely contain my anxiety and rushed to the hospital straight away. Anna and Carlo had had the presence of mind to summon an ambulance immediately, which arrived within four minutes and undoubtedly saved the day. We are all so vulnerable. Luca is doing fine now, but Anna and Carlo are ever alert.
Since Angela’s case other similar ones have gone back to the Court of Appeal, which is a start. That is just in the criminal arena, but there are thousands of cases in the civil arena, and this is a much worse position, where the authorities have powers without going to court. Children are taken away in the night on the back of the opinion of an expert who says there has been abuse, or smothering, or whatever they believe it is, and often the mother finds the second child is taken away too, without redress. Parents are told: if you make a fuss, it goes to court. Following the Cannings judgment, many of these parents are coming out and demanding that their cases be reassessed, in order to see if the nature of that evidence was reliable in the first place.
There is, however, a long road to travel, as Nicky and Mark Webster discovered to their cost on 11 February 2009. They were seeking the return of their three eldest children, who had been removed from them and adopted in December 2005. The local authority believed that one child had suffered non-accidental injuries inflicted by one or both parents. In 2007 fresh evidence suggested that the fractures may have related to iron deficiency caused by a feeding disorder and not to deliberate assaults. The court was unable to undo the formality of the adoption orders and observed that if there is a lesson to be learned from the case, it is the need to obtain second opinions on injuries to children at the earliest opportunity, particularly in cases where, as here, the fault was unusual.7
Angela was finally reunited with her family and, as others before her have done, she has lent her support to those facing a similar predicament. Her own ordeal has taken its toll, however: she and Terry are no longer together.
On the positive side, the Attorney General instigated a full review of 200 other cases to ensure there had been no other miscarriages of this kind, and they were referred back to the Court of Appeal. I handled four of these cases, which were heard at the same time in June 2005. It was a daunting and mammoth undertaking, accomplished with a great legal team. It was the research connected with them which gave me cause for concern and made me think about how we all handle our own children.
Medical opinion had considered that one of the main features of baby shaking was the presence of a subdural haemorrhage, combined with brain swelling brought about by the direct impact between the brain and the skull. This was usually illustrated to a jury by comparing the impact involved in a child being hit by a car travelling at forty miles per hour: in other words, hardly something that would arise by accident, or in the rough and tumble of everyday play, or from the occasional fall from a bed, highchair or climbing frame.
However, following groundbreaking work carried out by three distinguished experts – English neuropathologist Dr Jennian Geddes, anatomical forensic pathologist Dr John Plunkett and American biomechanical engineer Dr Kirk Thibault – it became clear that catastrophic injuries could be occasioned by a small degree of force. In one tragic US case a grandmother happened to video her granddaughter at play on an indoor climbing frame when the little girl fell awkwardly only a few feet from the ground, with fatal consequences.
No one is suggesting that this sort of sad occurrence is inevitable, or anything other than rare. What is being tested is whether the working hypothesis used to trigger child-abuse investigations can be satisfactorily transformed into a conviction. In other words, great care has to be taken before jumping to conclusions based on criteria customarily associated with Shaken Baby Syndrome, which had almost reached the status of a dogma. If three types (‘a triad’) of intracranial injury were found – encephalopathy, subdural haemorrhage (SDH) and retinal haemorrhage – then there was a strong presumption of deliberate injury inflicted by the child’s carer.
In the light of the fresh medical evidence, the Court of Appeal judges said:
On our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically, or necessarily, lead to a diagnosis of non-accidental head injury.8
Twenty-one experts in different fields had brought their experience to bear on a complex series of interrelated cases, and in the crucible of a courtroom it is often easy to forget the emotional impact and tragedy that have been inflicted on families who have not only lost a loved one, but have also been subjected to the microscope of public scrutiny.
This was particularly so for a young couple whom I met in 2005: Angela and Ian Gay, who had been convicted of poisoning three-year-old Christian Blewitt by force-feeding him with salt. I had read about their conviction in a newspaper and felt that there was something inherently wrong with it. I was in contact with Bill Bache, the solicitor who had taken over their case and with whom I had worked on the Cannings appeal. It seemed that similar mistakes and similar assumptions were being made.
Angela and Ian had been through the difficult business of adopting Christian, and not long after the adoption had been concluded, the little boy was rushed to hospital, where it was discovered that he had a very high concentration of sodium (salt) in his body plasma. The amount was calculated to be equivalent to 30g or approximately six teaspoons full of dry salt – roughly the same as drinking 1 litre (1¾ pt) of triple-strength saline or sea water. At trial the jury were left with only one viable explanation: forcible ingestion.
Despite no sensible or plausible method being postulated as to how a three-year-old infant could possibly have been made to consume such quantities without being violently sick, both Angela and Ian were convicted of manslaughter. Once you begin to think about it, contesting this requires going back to the drawing board and approaching the whole matter from first principles, and fortunately there was somebody able to do this in time for their appeal.
Dr Glyn Walters, a committed and passionate scientist then nearing retirement, got down to brass tacks. You may get a high concentration of sodium because in one way or another you have taken too much on board; alternatively, you may have too much sodium concentrate, because you have lost a great deal of water and haven’t replaced it; finally, there could be a problem with the regulatory mechanisms which govern the delicate balance between total body water – 60 per cent of body weight is water – and sodium. Total body water is normally maintained within narrow limits, and is kept inside those limits through the action of the anti-diuretic hormone (ADH), which is made in the part of the brain called the hypothalamus. There are sensors or receptors that tell the brain when it is necessary for the body to get rid of fluids like water, as well as when not to, and of course when to drink, and all of this is known collectively as the osmostat – a bit like a thermostat.
What had not been appreciated during the trial were the problems that might arise with the osmostat. Most obviously, its function could be disrupted by brain disease, but what Dr Walters discerned was the possibility that while the sensors may not have been affected by a brain disease, they may have been reset at too high a level by an unknown natural cause. This means that instead of the normal 140 threshold, a much higher level of 170 may have been set, for some unknown reason, in this particular case. Dr Walters noticed that while Christian was (counter-intuitively) being treated in the hospital with a saline solution, this regime never took Christian below 157. He was therefore effectively operating at a higher level, excreting the amounts being administered. Dr Walters could not be sure that this was the explanation, but equally he could be sure that this was not a case of hypernatraemia (salt poisoning), if for no other reason than the 30g of salt were not being excreted. The obvious answer to this was that Christian had never taken that amount in the first place.
The Court of Appeal ordered a retrial, which took place in 2007, conducted successfully by a good friend and colleague in Tooks Chambers,9 Michael Topolski. Angela and Ian Gay were acquitted, but they had had their lives blighted by an allegation that they had punished Christian for his misbehaviour by forcing salt into his body in some way or another. Worse, they had lost their lovely adopted child.
These are complex and unusual cases where a jury can hardly be expected to make informed judgments on the basis of a science which is barely proven and whose frontiers are uncertain.
The problem is often discerning where these frontiers are. What are you dealing with? Where does it fit in? Where do you look to find out more? Who are the right experts? It’s taken all my professional life for lawyers to realise that the all-purpose, ubiquitous jack-of-all-trades defence expert is long gone.
This was never more pertinent than for Kevin Callan.
Kevin was a Manchester-born, United football fan who left school at fourteen when the family moved to Gorton in Derbyshire. Bored, he was allowed by the authorities to spend his last compulsory years of schooling painting and decorating old people’s homes. He enjoyed it. He learned to drive early and eventually became a lorry driver, going back and forth to the Continent.
He had two failed marriages and two kids, with whom he always stayed in contact. But there was one woman, Les, who kept coming in and out of his life, until in 1985 he tracked her down and moved in with her. Les Allman had two young daughters, Mandy and Natalie; Mandy had cerebral palsy (a neurological condition from birth, which makes speech and movement difficult, although many sufferers are very bright indeed). The combined new family got on really well and Kevin became very involved in Mandy’s care: he helped her ‘walk’ with the aid of splints and learn the alphabet. This was a long, slow process that required hours of patience, but Les and Kevin enjoyed the challenge, as did Mandy. The family moved to Wales to be near a special school for Mandy, close to Kevin’s parents and not far from Les’s. They planned to get married in 1990.
Kevin kept up a rigorous exercise regime with Mandy, supervised by her Child Development Unit and physiotherapist. They used a sponge roll to strengthen her arm and leg muscles, and Mandy had fun in the process. But things began to go wrong for her when she had a couple of accidents at the school, involving bruising and, more seriously, a ‘2cm-deep laceration to the crown of her head’10 caused by falling onto the corner of a table. Les took her away from the school.
Mandy was very upset by the incident and started vomiting and becoming listless. Kevin told me later on how he saved her life at night more than once, by preventing her from choking on her own vomit. He and Les were very worried for her. She was in pain from the stitches in her head and on 14 December 1990 they took her to a paediatrician, who told them not to worry. Kevin was certain the deterioration in Mandy was a result of the fall at school.
Les and Kevin felt ignored by the health professionals and couldn’t seem to get any help, despite asking repeatedly. Finally in March 1991 both Les (who had had a minor gynaecological operation) and Mandy went into Tameside Hospital for tests. But for some unexplained reason Mandy didn’t have her tests; and a week later Les learned that she herself might have been pregnant at the time of her operation. She would now need another operation to remove their unborn child. The couple were devastated.
Things seemed to be going from bad to worse for this once-happy family. At the beginning of April, Mandy fell off a worktop in the kitchen when Kevin rushed into the other room to attend to a crying Natalie for a few seconds. Mandy had bruises all down the side of her body and the cut on her head reopened, but she wasn’t seriously hurt and seemed fine.
But a few days later she came back from school unwell, and two social workers turned up and took Mandy to see a Dr Marie Lawrence, who said that she wasn’t concerned as the injuries were consistent with the fall that Kevin had described. Les and Kevin realised they were under scrutiny, although what they actually wanted was scrutiny for Mandy by committed health professionals.
Mandy went back to school for two days, but Kevin and Les were so worried that they called out their GP, Dr Susan McClure, who – despite hearing Mandy’s symptoms – simply looked in her ears and said she was all right. But she wasn’t. On the Friday she stayed off school, but bumped herself again when her frame toppled over. (This falling is common in children with cerebral palsy: they are very uncoordinated and unsteady, but have to be encouraged to try and become independent and mobile.)
Mandy had a fun fourth birthday with her grandparents on 14 April, playing with a cardboard baby pram that Kevin had made her, but the next day Les had to go into hospital for her remedial operation. Mandy had another fall – this time down the stairs, but she seemed not to be concerned at all. She and Natalie stayed with Kevin all day, helping to make a path in the garden. A health visitor called unexpectedly, but Mandy was asleep upstairs. In the afternoon a couple of visitors came and saw Mandy playing happily on the slide in the garden.
When Les came back from day surgery she sat and watched the kids on the swing, but suddenly Mandy went very white. Kevin brought her in, but her eyes glazed over and she cried and pointed to her head and belly – as she had done whenever these incidents had occurred. They put her down for a rest, and some time later Les insisted on going to the local shops for some things. Kevin cleared up and decided to get Mandy ready for bed proper. Coming out of her bedroom to say goodnight to her mummy, Mandy started to vomit ferociously and began struggling for air. Kevin rushed her to the bathroom to try and unblock her airway. He was in a panic and started mouth-to-mouth resuscitation; when Les heard his shouts, she rushed up the stairs and then down again next door to phone for an ambulance. Her neighbour Margaret came back with her and saw Kevin pushing on the little girl’s stomach and chest: he got something out of her mouth and she started gurgling. A medic appeared and told Kevin, ‘Carry on, mate, you’re doing a good job.’ The medic soon took over and, using a suction unit, unblocked Mandy’s airway and she was rushed to Tameside Hospital.
After the couple had waited for what seemed like hours, a doctor finally came to tell them that Mandy had died from a ‘brain haemorrhage’. Les’s father Neville asked if they could see her medical records, but was refused.
The family were obviously deeply distressed, but within a short time they were to become even more so. Kevin was arrested on 16 April 1991 for the murder of his young stepdaughter.
At the trial Les was pressured into being a witness for the prosecution. In fact she was a wholly positive witness for Kevin, maintaining that he was not guilty, was an excellent father and had achieved ‘minor miracles’ with Mandy. But her evidence was overshadowed by the two prosecution experts: Dr Geoffrey Garrett, a Home Office pathologist with thirty years’ experience, and Dr Jeffrey Freeman, the Consultant Paediatrician at Tameside Hospital. They both asserted that Mandy had been forcibly shaken to death, so the jury found against Kevin and he was convicted. He spent the next four years trying to clear his name.
Over the preceding months his relationship with Les had become more and more strained, not helped by the fact that social services had threatened to take Natalie away: in fact, after he was found guilty, they came to Kevin and said they were considering wardship proceedings. Kevin refused to say that Les was an unfit mother, but the corrosive effect of the situation was too much for both of them and their relationship ended. Although Les met someone else and became pregnant again, she retained a deep affection for Kevin.
Kevin was determined to prove his innocence and went to the Wakefield Prison library, asking for medical books on head injuries. Several were suggested, but he liked the sound of Head Injury: The Facts by Philip Wrightson, Dorothy Gronwall and Peter Waddell.11 He read and reread the book, which seemed to verify everything that had happened. From his prison cell he wrote to the authors, who specialised in neuropathology. Unfortunately they lived in New Zealand.
He also wrote to Campbell Malone – a jovial, open-hearted northerner who has proved himself a tireless campaigner for sufferers of miscarriages of justice. He’s down to earth and really knows what he’s doing, but as with most good legal aid lawyers is badly underresourced. Kevin asked us both to represent him. We agreed. Then Philip Wrightson replied and said he’d like more information on the case as it raised serious concerns. Things were beginning to move.
Kevin conducted his own research, reading everything he could get his hands on about cerebral palsy, brain surgery and neuropathy. Philip Wrightson agreed to work on the case for nothing, and by this time Kevin had written to specialists all over the world to gain knowledge and help for his case. He started to get support from campaign groups and the local paper, but the prison authorities seemed to put everything in the way to stop him – even down to refusing him typewriter ribbons and Tipp-Ex. In 1992 Kevin had a surprise visit from Les. He was pleased she was still supporting him, but couldn’t work out why she wasn’t campaigning to clear his name, as he was.
Kevin had always said that the initial head injury at the school in November 1990 was crucial, as were the subsequent falls from the slide and down the stairs, which could have caused the fatal haemorrhage, particularly in a child with cerebral palsy. But no scans or relevant tests were ever done. And the blocked airway after her vomiting had contributed to cerebral oedema and irreversible brain damage. In March 1993 Philip Wrightson wrote summarising his findings, and they showed exactly that: Mandy had not been killed by shaking. Kevin was overcome with relief.
Campbell contacted another eminent consultant forensic pathologist, Helen Whitwell, whose report concurred with Wrightson’s and maintained that Dr Garrett’s evidence and postmortem report had been seriously flawed. The papers went in to the Appeal Court.
On 15 April 1994, the third anniversary of Mandy’s death, the court turned down Kevin’s application in an unduly summary fashion. Lord Justice Tucker wrote:
I see no reason to grant such a long extension of time.* I would not have granted leave in any event. It was open to your advisors to obtain this [new] evidence at the time of trial. The fact that two new experts have now been discovered does not enable you to reopen the matter in my opinion.12
This is the informal, unspoken doctrine that you can’t have ‘two bites at the cherry’. It’s short-sighted and based on the hidden premise underlying the beliefs of some of the traditional higher judiciary that most people who have been convicted by the courts are ne’er-do-wells who are just playing the system.
This was a major blow, but we plodded on until finally in October leave to appeal was granted. And then a prosecution scientist agreed with our two experts, and the game was up. The case against Kevin was formally dropped on 6 April 1995 and we won his appeal without opposition, barely one year on from Lord Justice Tucker’s summary refusal.
Afterwards Kevin had support from Paddy Hill, one of the Birmingham Six (see Chapter 17), who warned him of the emotions that might overcome him now that he was released and of the intense media attention – and he was right about both. Kevin developed severe pains in his stomach, no doubt due to the stress he was experiencing. He and Les agreed to visit Mandy’s grave, and not long afterwards got back together. Life was tough in a caravan with Natalie and Jade, her new sister. They had had no compensation and little help from the authorities. Kevin was also twice visited by the police about other crimes. Campbell complained on his behalf, but it certainly unnerved Kevin.
At last some friends on the caravan site offered the family a new home to rent. Then life looked up and Kevin had his other two kids to stay, too. The compensation came through; Les and Kevin finally got married. They were very happy, but suddenly in 1996 Kevin had to have emergency surgery for a burst duodenal ulcer. He was lucky to survive – but, unfortunately, not for long. His experiences had scarred him irreparably, and Kevin Callan died prematurely in 2003 at the age of forty-five.
Although his case attracted little attention and went largely unnoticed, his legacy is immense. The main point is simple. Certain infant head injuries (such as a double haematoma or bruising) clearly suggest the possibility of maltreatment, and such a natural assumption must be investigated. But an open mind is imperative, because the injuries may not necessarily have been caused deliberately by blunt impact or shaking at the hands of a carer. Judgments about this cannot be left to paediatricians or ordinary pathologists alone. In Kevin’s case no one – no lawyer, no police officer, no social worker, no doctor, no judge – had spotted that there was no input from the specialist field that mattered most, neuropathology.
It took Kevin himself, from his prison cell, to find this out. We are all indebted.
The time is long overdue to take action over the shortcomings of forensic science as well as the failings of forensic scientists.
There are several deficiencies common to many of these cases, although not all of them. Frequently, a prosecution is embarked upon when it is clear from the start that there is a serious division of opinion between reputable experts about the cause of particular injuries. Sometimes the dispute is over basic issues from the original findings – in other words, what can actually be discerned from scans, X-rays, the histology and so forth.
The process nearly always involves at least two stages: the findings and then the interpretation, often with the added complication that the original samples have been used up or lost, and occasionally that the appropriate examinations were not all done in the first place.
What remains, therefore, tends to be the opinion of one expert against another. This provides a nearly impossible situation for any fact-finding tribunal, whether jury and judge or judge alone. On what basis can a non-scientist arrive at a conclusion of guilt or innocence when the choice may merely come down to a preference in presentation? Rarely will there be exhibits that can be pored over, and even if there are, they are often unintelligible.
In the Cannings case, the Court of Appeal provided some extremely sensible guidance. Lord Justice Judge suggested that where an investigation into two or more sudden unexplained infant deaths was followed by a serious disagreement between reputable experts, then the prosecution should not be started or continued without additional cogent evidence.
Unfortunately, this advice has not been heeded, and cases go forward in the absence of corroborative evidence. Even when experts have been discredited, cases proceed by substituting other experts who will come up with the same theory or a new one, or who stray beyond their own area of expertise. In short, the same old assumptions are dragged out, propped up and maintained.
None of this should be happening, but one of the reasons why it is continuing to take place is because in the UK we have not had a proper forensic-science facility independent of government facilities. We don’t have a tradition of challenging scientists, and forensic science has been considered the monopoly of the government state service. The defence has to go to a small number of private practitioners or occasionally to universities to obtain expertise, and this is increasingly difficult because there are cutbacks in legal aid or it’s hard to get authorisation for the expert that you really need. Sometimes you may have to go abroad, particularly in DNA cases, because there may be no one in the UK outside government service with this specialism.
It is time that the criminal-justice system took a firm grip of the situation by establishing a clear regulatory structure with obligatory protocols and guidelines. This has been raised endlessly in professional debate, parliamentary reports, reviews and Royal Commissions, but there persists an extraordinary reluctance to act.
In my view, what is needed is a National Institute of Forensic Science to lay down standards and guidelines for experts who give evidence in court, and such an institute needs to be properly resourced in order to provide for education, training, inspection and registration. The recently established Council for the Registration of Forensic Practitioners was not comprehensive, and membership was purely voluntary.13 However, in March 2009, the government announced that the Council was to be wound up. I hope that the forensic science regulator will establish a national and obligatory register of accreditation.
In all cases where forensic science is involved there needs to be, as there is in the USA, a preliminary hearing – which they call Frye – where the trial judge assesses the admissibility of expert evidence. Frye is named after a 1923 District of Columbia court decision refusing to allow a jury to learn the results of a crude predecessor of the modern lie-detector test. The court insisted on a precondition of ‘general acceptance’. The judges in Frye ruled:
Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.14
Essentially, the courts in the USA now exercise a form of quality control. Using the Daubert Test,15 the judge decides which experts are capable of giving evidence and the areas in which they are qualified to comment. This ensures that certain basic thresholds are achieved: that the theory or technique employed can be or has been tested, subjected to peer-review or publication and scrutinised for any known rate of error; and that it has been identified whether there is a consensus within the scientific community.
In the UK the present deficiencies have been given a recent and stark illustration by the conviction in February 2007 of a so-called expert forensic psychologist. Gene Morrison was convicted of twenty offences, involving a deception that he had practised for twenty-seven years. His qualifications had been bought from a website, and he had no genuine academic credentials or forensic-psychology skills. Up to 700 cases may now have to be reviewed because of the bogus opinions he proffered.
Besides wondering why forensic scientists, police officers, solicitors, barristers and judges never asked a single fundamental question that would have exposed this individual, what that case really illustrates is systemic failure on a grand scale. Obligatory accreditation, and hearings before the admission of such evidence, would have weeded out Morrison twenty-seven years ago.
An improvement in standards and training would also help to prevent future cases from going to trial where the expert evidence is disputed. In addition there should be fully funded, adequate resources for the independent sector used by the defence.
I am aware that in this chapter I have concentrated on parents, rather than children who are at risk. I have long been conscious from my first contact with a child-abuse case – Maria Caldwell, who died in 1975 – that children need and have a right to be protected. Every year there seems to be one more horrifying case after another: Victoria Climbie, who was killed by her guardians, and whose parents were represented by two members of my chambers in 2000; in 2007 a small girl with cerebral palsy thankfully survived malnutrition and terrible injuries inflicted on her by her parents: it was only when the child’s grandmother phoned for help that she was rescued by social services; and in 2008 we learned of the sickening case of ‘Baby P’.
So often I have been appalled by these stories, and two features stand out. First and foremost is the repeated failure by the authorities to implement the many recommendations that are carefully constructed in the wake of each case, the main ones being interagency cooperation and multidisciplinary working. Lord Laming conducted a review after the ‘Baby P’ case, which was published on 12 March 2009. He characterised child protection as a ‘Cinderella service’. More than 350 children had died at the hands of abusive or violent parents/carers between Victoria Climbie and ‘Baby P’, both of whose deaths occurred in the London Borough of Haringey. Two of his main observations were the need for a more efficient IT system to log essential information about children at risk, and the need for a national agency to oversee swift and effective implementation of the report’s recommendations.
The second feature to stand out is the fact that in so many of these cases there must have been someone who knew what was going on and who could have saved a life. The ‘I can’t get involved’ syndrome is almost as pernicious as the abuse itself.
One of the most vociferous and committed campaigners for children’s rights is Esther Rantzen,16 famous as the presenter of BBC Television’s That’s Life! for twenty-one years. The show changed the traditional role of the consumer programme, from simply exposing faulty domestic appliances and dodgy salesmen to investigating life-and-death issues, such as the need for more organ donors. In 1986 Esther produced and presented Childwatch, which alerted the British public to the prevalence of child abuse and successfully campaigned for a number of legal reforms, such as the introduction of the videolink for child witnesses in court. Even more importantly, perhaps, it helped launch the first national helpline in October 1986 for children in danger or distress, ChildLine – the first line of its kind anywhere in the world and now open twenty-four hours a day throughout the year. On the very first night 50,000 calls were made to ChildLine, which now has twelve bases around the UK; and hundreds of thousands of children with serious problems – including physical, sexual and emotional abuse – have been counselled by trained volunteers (one of whom was my second PA, Susie Haig). ChildLine has now merged with the NSPCC, providing it with extra resources, and the helpline has been emulated in 150 countries around the world. Countless children have been protected, and countless lives have been saved.
In 1989 Esther courageously exposed abuse at Crookham Court, a school near Newbury operated by a paedophile, who employed two paedophile teachers. Arrests took place, followed by a trial at Reading Crown Court. Esther was due to be a prosecution witness and sought my advice about what was going to be involved.
This was very unusual, but in my view entirely proper: witnesses do not receive sufficient support and explanation before engaging in what can prove a harrowing process. There are now various witness-support schemes, and some senior investigating police officers go out of their way to provide reassurance, but the problem is that the lawyers for the prosecution do not represent the witnesses being called, and in any event there is a professional rule precluding barristers from talking about the facts of the case to their own witnesses who are giving evidence.
What happens on television is familiar to all of us, and particularly to Esther; what happens in reality is quite another thing. In order to build confidence you have to start with the bare essentials, such as: where does the judge sit? How do you address him or her? Where is the jury box? Does the jury ask questions? Who are the barristers? In what order do they examine a witness? What happens if you have a memory lapse? And so on.
I made it clear to Esther that I could not ‘coach’ her, but I was able to give her a flavour of what to expect, and I accompanied her to the court throughout the two long days she gave evidence. She was quite naturally on edge, despite the fact that she had faced millions of viewers on a weekly basis, but she felt that she owed it to the abused children to give of her best. I remember her attention to detail – in particular, what kind of outfit she should wear – but the overriding memory was what she taught me about the children she counselled, and the categorical imperative that they are to be listened to and believed.
Until then I think I had fallen into the conventional trap often portrayed in the courts, that children tend to live in some fairytale land when it comes to talking about their personal experiences. She showed me how wrong that approach could be.
In the Crookham Court case, one defendant pleaded guilty, and the other two were convicted by the jury. The case also led to changes in the Children’s Act, which enabled social workers to intervene in private boarding schools.
There is an obvious tension between the rights of the wrongly abused child, on the one hand, and the wrongly accused parent, on the other. How do you ensure the sanctity of the former without infringing the integrity of the latter? As usual there is an extraordinarily sensitive balance to be struck between doing absolutely nothing (turning a blind eye) and raising regular false alarms and interventions.
There are two major factors bearing on this exercise. First, one thing is for sure: it cannot, and should not, be left to the professionals – the social workers, doctors, teachers – alone. Each one of us bears a responsibility (whether we are a relative, neighbour or friend) to be alert and unafraid to confront or report untoward or disturbing behaviour towards children. This is not to advocate ‘grassing on your granny’, but straightforward civic awareness.
Second, our awareness (professional and lay) has to be sensitised by well-grounded information and not prejudiced by the prism of presumption. The ‘well-to-do’ are no less predisposed to violence than the less well-off, and the appearance of injury may belie a medical propensity. Discerning which is which requires careful, time-consuming and considerate enquiry. This should be expected and welcomed as a matter of course. It’s not the ‘nanny state’, but the caring community.
* Confidential Enquiry into Still Births and Deaths in Infancy, 7th Annual Report 2000, www.cemach.org.uk
* An application for leave to appeal has to be lodged within twenty-eight days of the date of conviction and sentence. Thereafter you have to obtain leave from the Appeal Court to lodge an application out of time.