- Email: [email protected]
In defence of Roy Meadow
Comment
In defence of Roy Meadow Prof Roy Meadow, an internationally respected paediatrician and expert in child abuse, stands accused of giving misleading evidence in the criminal proceedings brought against Sally Clark in 1999. She was alleged to have murdered her two sons, Christopher and Harry, in 1996 and 1998, respectively. On Nov 9, 1999, she was convicted, by a majority verdict, of killing both children. On Jan 29, 2003, that conviction was quashed. The case against Meadow is currently proceeding under intense public scrutiny at the UK’s General Medical Council (GMC). On the available evidence presented at the original trial and at two subsequent appeals, it is clear that Meadow should not be found guilty of serious professional misconduct. His referral to the GMC should never have taken place. Meadow is presently an understandable lightning rod of blame for the wrongful conviction of Sally Clark. But this misconceived pursuit of one man is wrong and threatens the effective delivery of child protection services in Britain. The GMC is not the place to reflect carefully and thoughtfully on the medical and legal systems responsible for ensuring the safety of children. The GMC is not the place to adjudicate on the use of statistical and other forensic evidence in child protection cases by the courts. The GMC is not the place to investigate apparent errors in either the systems of child protection or the use of forensic evidence. And the GMC is not the place to resolve the continuing and complex uncertainties over deaths of children that arouse concern or suspicion. Instead of concentrating on the actions of one individual, who inevitably becomes a public symbol—and scapegoat—for the weaknesses of an entire system, a broader approach to learning lessons from the unsafe convictions arrived at in Sally Clark's case is needed. The activities of the police, pathologists, lawyers, judges, expert witnesses, and juries need to be considered together. Given the additional recent public controversies over use of expert evidence in cases of shaken baby syndrome,1–3 for example, the Government should urgently create a Royal Commission to investigate and make recommendations about the use of experts by the courts. There is urgency because these cases are rapidly eroding confidence in the reliability of such expert evidence. The fear must be www.thelancet.com Vol 366 July 2, 2005
that some individuals who are genuinely guilty of murder will go free because of this loss of confidence. A report last year4 from the Royal Colleges of Paediatrics and Child Health and Pathologists has already laid valuable groundwork on which such a Commission could build. The charges against Meadow make it clear that he had a duty to give “competent impartial balanced and fair forensic evidence of scientific validity in accordance with good statistical principles and practice in relation to matters within [his] expertise”. It is alleged that he made fundamental errors in his interpretation of the meaning of risk estimates for two successive deaths from sudden infant death syndrome (SIDS). He had received a draft of a report on unexpected infant deaths from Prof Peter Fleming in August, 1999. That report—Sudden Unexpected Deaths in Infancy [SUDI]: the CESDI [Confidential Enquiry into Stillbirths and Deaths in Infancy] SUDI Studies 1993–1996—contained the following sentence: “For a family with none of these three factors [anybody smokes in the household, no waged income in household, mother 27 years and parity 1], the risk of two infants dying as SIDS by chance alone will thus be one in (8,543 8,543), ie, approximately one in 73 million.” It was not immediately clear that this sentence should be qualified by noting that a second SIDS death in one family is not independent of the first, or that there is an elevated risk of a second SIDS death in one family after there has been one such death. Fleming was told by Sally Clark’s lawyers that Meadow had provided the estimate of 1 in 73 million to the prosecution team. Fleming alerted them to the fact that this risk had been taken out of context, that a second SIDS death might indeed be related to common environmental, genetic, or biological factors. But Meadow was not asked in court about Fleming’s important qualification. Strangely and unjustly, Meadow is now being blamed for not addressing the point, even though it was not made to him by Sally Clark’s legal team. What the evidence in the Sally Clark case actually shows is quite different to that which has been portrayed in many public accounts, even accounts published in medical journals.5 In some astonishingly
See World Report page 15
3
Comment
4
Rights were not granted to include this image in electronic media. Please refer to the printed journal
Empics
poorly judged reports, for example, Meadow has been compared with Harold Shipman, the serial killer and general practitioner. Such comparisons are cruel and salacious. In truth, Meadow had carefully examined the evidence relating to the deaths of Sally Clark’s two sons. He had drawn conclusions about their cause of death based on the available evidence and his own considerable forensic experience.6 It was his judgment that Sally Clark's two sons were unlikely to have died from natural causes. He gave that opinion and presented evidence supporting that opinion at Sally Clark’s trial in 1999. As an experienced witness, he was well used to lawyers pushing for greater certainty. Mistakenly, in this instance he complied. His occasionally colourful metaphors—eg, that the chance of Sally Clark’s two sons dying natural deaths were comparable to four different horses winning the Grand National in consecutive years at odds of 80:1—did not help. But his capitulation to lawyerly pressure and his use of imaginative language were made in good faith. And there was ample opportunity for his evidence to be challenged by the defence (which it was not). What is striking when one looks at the evidence presented during the original trial is the complexity of the gross and microscopic pathological findings, together with the uncertainty surrounding the interpretations of those findings. The prosecution called four expert witnesses, one of whom was Meadow; the defence team relied on five experts. There was detailed examination of evidence concerning bruising, softtissue injuries, bleeding and inflammation in the lungs, haemorrhages in the eyes and spinal cord, brain tears, and rib injuries, among other lesions. The bulk of the case against Sally Clark rested on this pathological evidence. The possibility that the deaths of her two sons could have been attributed to SIDS was not seriously considered. And with respect to Meadow's use of statistics, the judge urged caution on the jury. He said in his summing up: “However compelling you may find them to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family, it does not mean that there cannot be another one in the same family.” During the first appeal of Sally Clark's conviction in 2000, the pathological evidence continued to be a source of dispute, as did the different views of the many expert witnesses. However, the Court of Appeal
Professor Roy Meadow
concluded that “there was overwhelming evidence of the guilt of the appellant [Sally Clark] . . . No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS”. The court accepted that there was an error in the way statistical evidence had been handled at the trial. That error did provide substance to one of the grounds for appeal. But after reviewing the possibility that the error rendered the convictions unsafe, the Court argued that, “If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached”. At the second appeal, there was still more debate about the pathological evidence. But now questions were raised about the competence of the pathologist who conducted the necropsies of Sally Clark's two sons. The defence argued that the cause of deaths of her two children could not be determined with any degree of certainty. Indeed, new evidence was discovered suggesting that infection with Staphylococcus aureus at multiple sites, including the cerebrospinal fluid, could have accounted for Harry’s death. Once this possibility was successfully introduced, the verdict in respect of Harry’s death was inevitably unsafe. No safe conclusion could therefore www.thelancet.com Vol 366 July 2, 2005
Comment
now be reached about Christopher’s alleged murder. Hence, Sally Clark’s conviction was quashed. The Court of Appeal could have ended its judgment there. But it went on to comment on two aspects of the case. First, it examined the way in which the new microbiological evidence had come to light. The court concluded that the original pathologist “had fallen a very long way short of standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent”. That pathologist, Dr Alan Williams, was found guilty of serious professional misconduct by the GMC last month. The court also considered the statistical evidence in a few final paragraphs of its judgment. The comments were few because statistics were “the subject of only brief argument” in the appeal. Despite the marginal importance of the statistical evidence in the appeal and while noting that the effect of Meadow’s evidence “will never be known”, the court claimed, on noticeably weak grounds, that “it may have had a major effect” on the jury’s thinking, even though the trial judge had attempted to downplay its value. But the focus of the Court of Appeal’s criticism was not against Meadow. Instead, the court criticised the fact that there had been no formal consideration at the original trial as to whether statistical evidence should have been admitted at all. This evidence should never have been put before the jury, according to the Court of Appeal. The crucial error was legal, not medical. In the Court of Appeal’s view, “If there had been a challenge to the admissibility of the evidence we would have thought that the wisest course would have been to exclude it altogether”. Yet, regrettably, no such legal challenge was made. In 1998, in an editorial about shaken baby syndrome, we wrote that “the difficulties faced by experts in presenting medical evidence in court, and by the judge and jury in making sense of it, are readily imaginable”.7 That reality has been forgotten in the rush to blame someone for Sally Clark’s wrongful conviction. The idea that there is absolute irrefutable knowledge that one either possesses or does not is a dangerous fallacy. Critical decision-making by doctors about the welfare of patients is often based on information that is less than 100% certain. Sometimes, the gap between certainty and uncertainty cannot be filled by data. At that moment one puts one’s trust in an expert who possesses as much of the evidence as is reasonably www.thelancet.com Vol 366 July 2, 2005
possible, and who has experience in evaluating such evidence. One calls on that expert to act as a guide through this gap in knowledge. In the legal setting, if at some point in the future a part of an expert’s evidence is questioned, as in the case of Meadow, it is wholly correct that there should be consideration as to why an error was made and how that error might be prevented in the future. Yet in such an instance, society also needs to guard against any crude and oversimplistic settling of scores. One needs to judge the expert according to his or her good faith in assisting the court, and according to our own deep humility about our own ignorance. The frustration and fury expressed by some when experts cannot deliver foolproof explanations for tragic mysterious events must not be allowed to encourage the unjust punishment of one individual who has tried his best to serve the court. The causes of death of Sally Clark’s two sons remain unascertained. The GMC cannot be the place to arbitrate on such complex and contingent aspects of medicine’s intersection with the law. Instead, the fair and appropriate way forward is to find ways to improve a judicial system where facts are gathered and presented, opinions are sought and tested, and judgments are arrived at. That process might best be achieved by the kind of rigorous investigation offered through the work of a Royal Commission. Irrespective of the outcome, the Government should announce the creation of such a Commission immediately after the conclusion of the GMC’s latest deliberations. That may be the only way to secure and strengthen childprotection services in the UK—services whose effectiveness currently hangs in the balance. In the meantime, facts and fairness demand that Prof Roy Meadow be found not guilty of serious professional misconduct. Richard Horton The Lancet, London NW1 7BY, UK 1 2 3 4
5 6 7
Braid M. The worst accusation. Sunday Times June 19, 2005: 10. Le Fanu J. Happy, loving parents? They must be child abusers. Sunday Telegraph June 19, 2005: 19. Cavendish C. The cruellest verdict of them all. Times (Lond) June 20, 2005: 18. Sudden unexpected death in infancy. London: Royal College of Pathologists and the Royal College of Paediatrics and Child Health, 2004. Watkins SJ. Conviction by mathematical error? BMJ 2000; 320: 2–3. Meadow R. ABC of child abuse, 3rd edn. London: BMJ Publishing Group, 1997. Editorial. Shaken babies. Lancet 1998; 352: 335.
5
In defence of Roy Meadow Prof Roy Meadow, an internationally respected paediatrician and expert in child abuse, stands accused of giving misleading evidence in the criminal proceedings brought against Sally Clark in 1999. She was alleged to have murdered her two sons, Christopher and Harry, in 1996 and 1998, respectively. On Nov 9, 1999, she was convicted, by a majority verdict, of killing both children. On Jan 29, 2003, that conviction was quashed. The case against Meadow is currently proceeding under intense public scrutiny at the UK’s General Medical Council (GMC). On the available evidence presented at the original trial and at two subsequent appeals, it is clear that Meadow should not be found guilty of serious professional misconduct. His referral to the GMC should never have taken place. Meadow is presently an understandable lightning rod of blame for the wrongful conviction of Sally Clark. But this misconceived pursuit of one man is wrong and threatens the effective delivery of child protection services in Britain. The GMC is not the place to reflect carefully and thoughtfully on the medical and legal systems responsible for ensuring the safety of children. The GMC is not the place to adjudicate on the use of statistical and other forensic evidence in child protection cases by the courts. The GMC is not the place to investigate apparent errors in either the systems of child protection or the use of forensic evidence. And the GMC is not the place to resolve the continuing and complex uncertainties over deaths of children that arouse concern or suspicion. Instead of concentrating on the actions of one individual, who inevitably becomes a public symbol—and scapegoat—for the weaknesses of an entire system, a broader approach to learning lessons from the unsafe convictions arrived at in Sally Clark's case is needed. The activities of the police, pathologists, lawyers, judges, expert witnesses, and juries need to be considered together. Given the additional recent public controversies over use of expert evidence in cases of shaken baby syndrome,1–3 for example, the Government should urgently create a Royal Commission to investigate and make recommendations about the use of experts by the courts. There is urgency because these cases are rapidly eroding confidence in the reliability of such expert evidence. The fear must be www.thelancet.com Vol 366 July 2, 2005
that some individuals who are genuinely guilty of murder will go free because of this loss of confidence. A report last year4 from the Royal Colleges of Paediatrics and Child Health and Pathologists has already laid valuable groundwork on which such a Commission could build. The charges against Meadow make it clear that he had a duty to give “competent impartial balanced and fair forensic evidence of scientific validity in accordance with good statistical principles and practice in relation to matters within [his] expertise”. It is alleged that he made fundamental errors in his interpretation of the meaning of risk estimates for two successive deaths from sudden infant death syndrome (SIDS). He had received a draft of a report on unexpected infant deaths from Prof Peter Fleming in August, 1999. That report—Sudden Unexpected Deaths in Infancy [SUDI]: the CESDI [Confidential Enquiry into Stillbirths and Deaths in Infancy] SUDI Studies 1993–1996—contained the following sentence: “For a family with none of these three factors [anybody smokes in the household, no waged income in household, mother 27 years and parity 1], the risk of two infants dying as SIDS by chance alone will thus be one in (8,543 8,543), ie, approximately one in 73 million.” It was not immediately clear that this sentence should be qualified by noting that a second SIDS death in one family is not independent of the first, or that there is an elevated risk of a second SIDS death in one family after there has been one such death. Fleming was told by Sally Clark’s lawyers that Meadow had provided the estimate of 1 in 73 million to the prosecution team. Fleming alerted them to the fact that this risk had been taken out of context, that a second SIDS death might indeed be related to common environmental, genetic, or biological factors. But Meadow was not asked in court about Fleming’s important qualification. Strangely and unjustly, Meadow is now being blamed for not addressing the point, even though it was not made to him by Sally Clark’s legal team. What the evidence in the Sally Clark case actually shows is quite different to that which has been portrayed in many public accounts, even accounts published in medical journals.5 In some astonishingly
See World Report page 15
3
Comment
4
Rights were not granted to include this image in electronic media. Please refer to the printed journal
Empics
poorly judged reports, for example, Meadow has been compared with Harold Shipman, the serial killer and general practitioner. Such comparisons are cruel and salacious. In truth, Meadow had carefully examined the evidence relating to the deaths of Sally Clark’s two sons. He had drawn conclusions about their cause of death based on the available evidence and his own considerable forensic experience.6 It was his judgment that Sally Clark's two sons were unlikely to have died from natural causes. He gave that opinion and presented evidence supporting that opinion at Sally Clark’s trial in 1999. As an experienced witness, he was well used to lawyers pushing for greater certainty. Mistakenly, in this instance he complied. His occasionally colourful metaphors—eg, that the chance of Sally Clark’s two sons dying natural deaths were comparable to four different horses winning the Grand National in consecutive years at odds of 80:1—did not help. But his capitulation to lawyerly pressure and his use of imaginative language were made in good faith. And there was ample opportunity for his evidence to be challenged by the defence (which it was not). What is striking when one looks at the evidence presented during the original trial is the complexity of the gross and microscopic pathological findings, together with the uncertainty surrounding the interpretations of those findings. The prosecution called four expert witnesses, one of whom was Meadow; the defence team relied on five experts. There was detailed examination of evidence concerning bruising, softtissue injuries, bleeding and inflammation in the lungs, haemorrhages in the eyes and spinal cord, brain tears, and rib injuries, among other lesions. The bulk of the case against Sally Clark rested on this pathological evidence. The possibility that the deaths of her two sons could have been attributed to SIDS was not seriously considered. And with respect to Meadow's use of statistics, the judge urged caution on the jury. He said in his summing up: “However compelling you may find them to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family, it does not mean that there cannot be another one in the same family.” During the first appeal of Sally Clark's conviction in 2000, the pathological evidence continued to be a source of dispute, as did the different views of the many expert witnesses. However, the Court of Appeal
Professor Roy Meadow
concluded that “there was overwhelming evidence of the guilt of the appellant [Sally Clark] . . . No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS”. The court accepted that there was an error in the way statistical evidence had been handled at the trial. That error did provide substance to one of the grounds for appeal. But after reviewing the possibility that the error rendered the convictions unsafe, the Court argued that, “If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached”. At the second appeal, there was still more debate about the pathological evidence. But now questions were raised about the competence of the pathologist who conducted the necropsies of Sally Clark's two sons. The defence argued that the cause of deaths of her two children could not be determined with any degree of certainty. Indeed, new evidence was discovered suggesting that infection with Staphylococcus aureus at multiple sites, including the cerebrospinal fluid, could have accounted for Harry’s death. Once this possibility was successfully introduced, the verdict in respect of Harry’s death was inevitably unsafe. No safe conclusion could therefore www.thelancet.com Vol 366 July 2, 2005
Comment
now be reached about Christopher’s alleged murder. Hence, Sally Clark’s conviction was quashed. The Court of Appeal could have ended its judgment there. But it went on to comment on two aspects of the case. First, it examined the way in which the new microbiological evidence had come to light. The court concluded that the original pathologist “had fallen a very long way short of standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent”. That pathologist, Dr Alan Williams, was found guilty of serious professional misconduct by the GMC last month. The court also considered the statistical evidence in a few final paragraphs of its judgment. The comments were few because statistics were “the subject of only brief argument” in the appeal. Despite the marginal importance of the statistical evidence in the appeal and while noting that the effect of Meadow’s evidence “will never be known”, the court claimed, on noticeably weak grounds, that “it may have had a major effect” on the jury’s thinking, even though the trial judge had attempted to downplay its value. But the focus of the Court of Appeal’s criticism was not against Meadow. Instead, the court criticised the fact that there had been no formal consideration at the original trial as to whether statistical evidence should have been admitted at all. This evidence should never have been put before the jury, according to the Court of Appeal. The crucial error was legal, not medical. In the Court of Appeal’s view, “If there had been a challenge to the admissibility of the evidence we would have thought that the wisest course would have been to exclude it altogether”. Yet, regrettably, no such legal challenge was made. In 1998, in an editorial about shaken baby syndrome, we wrote that “the difficulties faced by experts in presenting medical evidence in court, and by the judge and jury in making sense of it, are readily imaginable”.7 That reality has been forgotten in the rush to blame someone for Sally Clark’s wrongful conviction. The idea that there is absolute irrefutable knowledge that one either possesses or does not is a dangerous fallacy. Critical decision-making by doctors about the welfare of patients is often based on information that is less than 100% certain. Sometimes, the gap between certainty and uncertainty cannot be filled by data. At that moment one puts one’s trust in an expert who possesses as much of the evidence as is reasonably www.thelancet.com Vol 366 July 2, 2005
possible, and who has experience in evaluating such evidence. One calls on that expert to act as a guide through this gap in knowledge. In the legal setting, if at some point in the future a part of an expert’s evidence is questioned, as in the case of Meadow, it is wholly correct that there should be consideration as to why an error was made and how that error might be prevented in the future. Yet in such an instance, society also needs to guard against any crude and oversimplistic settling of scores. One needs to judge the expert according to his or her good faith in assisting the court, and according to our own deep humility about our own ignorance. The frustration and fury expressed by some when experts cannot deliver foolproof explanations for tragic mysterious events must not be allowed to encourage the unjust punishment of one individual who has tried his best to serve the court. The causes of death of Sally Clark’s two sons remain unascertained. The GMC cannot be the place to arbitrate on such complex and contingent aspects of medicine’s intersection with the law. Instead, the fair and appropriate way forward is to find ways to improve a judicial system where facts are gathered and presented, opinions are sought and tested, and judgments are arrived at. That process might best be achieved by the kind of rigorous investigation offered through the work of a Royal Commission. Irrespective of the outcome, the Government should announce the creation of such a Commission immediately after the conclusion of the GMC’s latest deliberations. That may be the only way to secure and strengthen childprotection services in the UK—services whose effectiveness currently hangs in the balance. In the meantime, facts and fairness demand that Prof Roy Meadow be found not guilty of serious professional misconduct. Richard Horton The Lancet, London NW1 7BY, UK 1 2 3 4
5 6 7
Braid M. The worst accusation. Sunday Times June 19, 2005: 10. Le Fanu J. Happy, loving parents? They must be child abusers. Sunday Telegraph June 19, 2005: 19. Cavendish C. The cruellest verdict of them all. Times (Lond) June 20, 2005: 18. Sudden unexpected death in infancy. London: Royal College of Pathologists and the Royal College of Paediatrics and Child Health, 2004. Watkins SJ. Conviction by mathematical error? BMJ 2000; 320: 2–3. Meadow R. ABC of child abuse, 3rd edn. London: BMJ Publishing Group, 1997. Editorial. Shaken babies. Lancet 1998; 352: 335.
5