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Thanks to Butterworths.co.uk
Problems with statistical evidence
Recent cot death cases have highlighted the problems in relying upon
statistical evidence to secure a conviction. Consultant and founder
member of Batt Holden Solicitors tells Mary Luckham why he believes it should be
outlawed from murder trials...
�One cot death is a tragedy,
two is suspicious and three is murder unless proved otherwise� is the
controversial �Meadow�s Law� put forward by Professor Sir Roy Meadow,
expert witness for the Crown in the case of Trupti Patel who was recently
acquitted of the murder of three of her babies.
John Batt, consultant and founder member of Batt Holden Solicitors called this:
"a medical superstition on the basis of which a number of mothers have been
convicted of murders which never happened."
John Batt was part of the defence team who acted for for Sally Clark in her
second and successful appeal against conviction for the murder of her two baby
sons. Meadow�s now notorious statistic that the chances of a middle class
family losing two babies to cot death was 1:73m or one in one hundred years is
considered to have played a large part in her original conviction. That
statistic, Batt said was inadmissible and: "should have been ruled so. Its
prejudicial value far outweighed its probative value."
Given the problems with statistical evidence he would like to see it
�outlawed� from murder trials but pointed out that: "The difficulty is
that every aspect of medicine depends upon statistics in order to devise the
best methods of attempting a cure."
He emphasised that it could not be denied that some mothers did kill and abuse
their babies and commented: "There is usually ample evidence of injury as
in the Victoria Climbie case." But he was scathing about the credibility of
the expert evidence used by the prosecution in cases such as those of Clark and
Patel. Of the eminent experts in the Clark case he said: "Two made crucial
mistakes of medical fact and another relied on erroneous statistical
reasoning."
He called such experts "the hawks of child abuse" and pointed out that
although empirical evidence suggested that around 2% to 6% of cot deaths were
suspicious, one of the leading �hawks� put the figure at 20% and another
thought it could be up to 40%. He questioned whether an expert who subscribed to
such a controversial theory could be truly impartial.
Very little is known about the causes of cot death and as Batt points out:
"Medical science has been trying to prove for 2,000 years what causes cot
deaths and a mother is expected, in a matter of weeks or months to explain the
deaths of her babies: a puzzle which has defeated the best medical brains in
history."
He continued: "Another problem we have which is not evidential, is the way
the criminal justice system works. If a mother is charged with the murder of a
baby and has a plea of infanticide accepted she will almost certainly not go to
prison. It is only if she denies it that the murder trial will go ahead."
He thought the imposition of a mandatory life sentence: "even if she has
killed a baby under the age of 12 months when her hormones are in flux � is to
treat her as though she were Myra Hindley and that seems to me to be a most
monstrous injustice."
He thought the way forward, which would also be more likely to properly identify
those people who have abused their children, would be to adopt the protocol
established by Professor Peter Fleming, a leading expert in this field. This
protocol is investigative rather than, as is our criminal justice system,
adversarial.
Under this protocol he said: "If there is a baby death with no apparent
cause � the first absolute rule is that the post mortem should be done by a
paediatric pathologist not by a home office or ordinary adult pathologist."
"Secondly, within 24 hours a full history is taken from the family by a
paediatrician, not by a police officer or a social worker. It is particularly
important in my view to exclude the police at this stage as there are on record
at least two cases of a women who, when their babies died, said �I have killed
my babies� If a police officer hears anything like that he is going to get out
the handcuffs and may not make allowances for the trauma and the natural guilt
that any mother feels when she suffers a cot death. She feels instinctively that
it must be something she did or failed to do that led to the death of her
baby."
"Once the paediatrician has taken the history and the paediatric
pathologist has performed the post mortem, if there are any unusual findings,
all the necessary professionals will be brought together. It is only then, if
the medical professionals decide that there is a reason to believe that someone
has deliberately harmed the baby, that the police and social services will be
called in. That, it seems to me, is a sensible way of proceeding.
He pointed out that in Sweden these cases do not, except in the most obvious
cases of abuse, go to court at all and said: "The adversarial system is
absolutely the wrong way to go about these cases. To pit two teams against one
another as though they were playing chess and the winner to be decided by a
panel of 12 people whose main qualification is that they know nothing about the
law or medicine in order to try to establish the cause of death of a baby is
just about the most Liliputian or crazy system which could ever be devised. It
is almost a recipe for miscarriages of justice." (20/06/03)
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