Don’t expect fairness from the courts

When South African police arrested a group of unarmed robbers, killing one in the process, it was ruled that his nine unarmed accomplices had killed him. They would go to jail as convicted murderers. Clearly something has gone wrong with the rule of law, says PROFESSOR ROBERT VIVIAN.

A colleague recently said I hold idiosyncratic views. I took it as a compliment. Syncratic has the same root as synchronise, to be in-step.

To have an idiosyncratic view is to be out of step. Copernicus, and later Galileo, had idiosyncratic views: they held that the earth rotates around the sun and not the other way around. No-one else shared their views. It turned out they were correct. For centuries, courts around the world sentenced people to horrible deaths for being witches. No-one had idiosyncratic views about that. No-one pointed out that there was no such thing as a witch and that those innocent people were being murdered. In those times, all views synchronised.

The idiosyncratic view I hold is this: the courts have abandoned the law.

A tragic British criminal law case provides the perfect illustration, and a South African case reinforces the point.

Sally Clark was a mother and solicitor who married Steve, also a solicitor. Her father was the respected retired chief of police. She was a person who grew up believing in, living and respecting the rule of law.

She had a child, Christopher, at the age of 32. Tragically, 11 weeks later, Christopher suddenly died – something most parents never recover from. An autopsy was conducted by Dr Alan Williams, a Home Office pathologist who found that the baby had died peacefully in his sleep of a lower respiratory tract infection.

The Clarks decided to have a second child, and Harry was born. They watched over him like hawks. Despite using a baby monitor and hiring an experienced nanny, eight weeks after birth and hours after receiving a mandatory vaccination, Harry died. The autopsy was again carried out by Dr Williams. Faced with the death of two sons, a tragedy that would crush most parents, the Clarks decided to have a third child, and Tom (not his real name) was born.

Williams, meanwhile, now believed Sally and Steve had murdered their two boys and concluded that Harry was shaken to death. Tom was taken from his parents, who were arrested for murder. Eventually the charge against Steve was dropped. Only Sally stood trial. She was convicted and sentenced to life imprisonment. Parole might be possible in the distant future, but she would have to confess to the murders. Since she would never be able to make such an admission, she was in for life. Her appeals were dismissed.

After more than three years in jail it was learnt that a microbiological report had indicated that Harry died of Staphylococcus aureus. He and his brother had died of an identified natural cause. Dr Williams had the report but chose not to reveal its existence during the trial. The existence of such a report was denied 57 times in court. Sally Clark was released shortly after its existence came to light – but the system had broken her. She died a few years later, aged 42.

Another mother, Angela Canning, convicted of the murder of three children, was released shortly after Sally Clark.

Rise of junk and voodoo science
What went wrong with the British justice system? Barrister Clare Montgomery QC, who represented Sally at the second appeal, concluded: “This grotesque miscarriage of justice was the result of flawed evidence given by forensic scientists.”

The three doctors involved – Dr Williams, Professor Green and Professor Sir Roy Meadows –  had fooled themselves into believing the “science” they were presenting was true. In America, this science is called Junk Science. Strangely, a legal expert in America, Professor Giannelli, had warned shortly before Sally Clark’s case that insufficient safeguards existed to protect against the misuse of scientific evidence in criminal trials. His warnings fell on deaf ears.

Meadows convinced himself and other court-appearing medical “experts” that many cases of Sudden Infant Death Syndrome were in fact murder by mothers. He was knighted for his contribution. It became inconceivable for a jury not to believe what he said. His great contribution was “evidence” that the probability of a baby dying from Sudden Infant Death Syndrome (SIDS) was one in 8 500, increasing exponentially to put the chance of three such deaths in one family at one in 600 billion.

This led to his famous statement, now called Meadow’s Law: “If one cot death is a tragedy, and two is suspicious, then three is murder until the contrary is proved.”

The “experts” decided before the trial that the mother was guilty. The deaths provided irrefutable “proof”. Any actual evidence was unnecessary. Green, a world expert on eyes, convinced himself that 40 percent of cot deaths, almost half, were in fact murders. Doctors could, however, not tell which half. But if a second child died, well then the identity of the murderer was revealed – it was the mother.

Sally Clark’s fate was sealed the moment Harry died. Williams was now convinced that Harry had been shaken to death. He rushed slides of Harry’s eyes to the eminent Professor Green, who took one look at them and declared that Harry had indeed been shaken to death. He didn’t need to look at the file or slides. Harry was the second child. He was murdered.

Shortly before the trial, the defence appointed another eye specialist. Professor Luthert examined the slides of Harry’s eyes and said the blood pattern indicated that he was delivered as a rapid natural birth delivery. This was confirmed. A meeting of experts, as required by law, was arranged between Professors  Green and Luthert. Green conceded that he had made a mistake and that Luthert was correct. Green said no-one had told him Harry had experienced a rapid birth. But this fact was contained in Williams’ report to Green – which Green had not read.

This was astounding. Green was prepared to see a woman spend her life in prison without careful examination of the evidence. This confirms that all the evidence that was needed was the death of two babies. Sally’s fate was sealed when that happened, not by what she did or what the evidence said.

Fallout
The non-disclosure of the microbiological report was enough to overturn Sally Clark’s conviction. The Court of Appeal summoned Dr Williams to explain why he failed to disclose the report. He refused to appear. The General Medical Council took disciplinary action against him. He appealed, and the sentence imposed on him was reduced to a suspension. Meadows, who many believe bore the greatest responsibility because of his simplistic statistics, was also subjected to disciplinary action. He too appealed, and was reinstated. Green apologised and was spared disciplinary action. Parliament changed the law with respect to evidence given by experts. Giannelli was correct. The law as it stood did not contain sufficient safeguards.

It is no longer possible to secure a conviction solely on the evidence of an “expert”.

Not a failure of doctors, a failure of the judicial system

This story illustrates my idiosyncratic view. In my view, this case is not about the failure of the medical experts. This travesty of justice demonstrates the failure of the courts to apply the law of evidence. Only relevant admissible evidence should be presented – but this rule is relaxed when it comes to experts. The laws of evidence do not apply. It was not because of evidence that Sally Clark was convicted; it was because “experts” were allowed to give this “evidence” in the first place.

One man’s calculation that the probability of two babies dying from cot deaths was 1 in 73 million conveyed to the jury that the possibility of two children in the same family dying of natural causes was so remote that it could be discounted. Clearly this figure had nothing to do with the facts. This was not legal evidence and should never have been permitted. It is no longer permitted. This evidence is in any event statistical and not medical. With irrelevant evidence being imputed as evidence, it is little wonder that these convictions took place.

There is a further evidential problem. This was a case of murder, which required two things to be established – firstly that the babies were murdered, and secondly that Sally Clark murdered them. But the burden of proof was not met. Maybe the babies were murdered and, if so, maybe Sally Clark murdered them. The medical experts did not testify that the babies were beyond doubt murdered. They testified that they were not convinced the babies died of natural causes.

It seems to me too much blame has been placed on the doctors and not enough on the courts. This case was more indicative of the failure of the courts to uphold the law of evidence.

Back to South Africa
This article stems from my previous article in which I warned that civil law had contaminated criminal law, and that criminal prosecutions that would have been impossible a few years ago are now possible. But the position is worse here, where we have a changing idea of what constitutes a crime. In South Africa, murder today is the same word as yesteryear, but it’s not the same thing. In the previous article, I argued that recent statutes have introduced crimes which are so general they exist after every and any occupational accident.

The changing idea of what is a crime is illustrated by the recent conviction for murder of a taxi driver who caused a serious motor accident. The crime he committed is culpable homicide, not murder.

The difference between culpable homicide and murder can no longer be distinguished. In Dube et al v State in 2010, Dube and nine friends decided to rob a bank. They thought they had successfully bribed an employee not to reveal the activation of the alarm that would go off during their robbery. In fact, the employee told his employer and the police. While effecting the arrest, one robber was shot and killed by the police. None of the robbers were armed. The remaining nine robbers were charged and convicted of two crimes: the murder of their fellow robber, and the attempted murder of the policeman who had killed him.

I cannot conceive for a moment how nine unarmed people could be found guilty of murdering someone who was killed by a policeman. Fortunately, on appeal, the court came to the same conclusion – but I remain at a loss to understand how they were convicted by a court of law in the first place. This confusion will continue, and it is only a matter of time before convictions in a similar case will stand. This problem lies with the law. It no longer exists; culpable homicide is murder and people who are not murders at all are convicted as murderers. Crimes as such no longer have any meaning.

Legally Speaking is a regular column by Professor Robert W Vivian, a leading authority on insurance and risk management. He has written a number of books on South Africa’s business history.