The conclusion of the 2000 appeal of the above case:
The strength of the case at trial
We have considered with care the extensive evidence placed before the jury at trial, and we have concluded that there was overwhelming evidence of the guilt of the appellant on each count.
No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS. Only the appellant relied on that contention, because she had no explanation nor credible account in respect of the previous injuries sustained by each baby. Young, immobile infants do not sustain injury without the carer having a credible history as to how the injury was caused. There was no such history from the appellant.
Medical evidence in respect of Christopher demonstrated that provided the jury accepted Dr Williams's evidence of the bruising and torn frenulum, there was an overwhelming inference that Christopher had been subjected to physical abuse shortly before death, and consistent with smothering. The findings of fresh blood and old blood in the lungs were independently consistent with smothering causing death and previous attempted smothering. The extent of the old blood in the lungs was inconsistent with a natural nosebleed because such an event would have required hospital admission for a seriously ill baby, whereas Christopher spontaneously and rapidly recovered from a nosebleed which was insufficient to stain clothing.
The recurrent features of infant killing originally thought to be natural death, and identified by Professor Meadow, were present: the previous unusual nosebleed unsatisfactorily explained; the time of evening when Christopher died; the fact that prior to death he had been well and had taken a feed; the inconsistent history recounted by the appellant as to whether Christopher was in a Moses basket or a bouncy chair.
The behaviour of the appellant at hospital when told her baby was dead impressed Dr Douglas as "... very dramatic and almost hysterical ..." and was described by her as "... such an over-reaction."
Medical evidence in respect of Harry identified:
a) extensive fresh bleeding around the spine; and, if Dr Williams's observations were accurate, swollen spinal cord;
b) hypoxic damage to the brain which occurred at least three hours before death;
c) haemorrhaging to the surface of the brain consistent with smothering;
d) petechial haemorrhages to the eyelid consistent with smothering;
e) unexplained haemorrhaging to the outer surface of the backs of both eyes;
f) fracture of the second rib which was some four weeks old for which there was no natural explanation;
g) dislocation of the first rib.
Professor Berry and Dr Rushton who gave evidence for the defence agreed that if Dr Williams's observation of a swollen spinal cord was accurate and the bleeding in the spine was from trauma, they would conclude a traumatic non-natural death and the fracture of the second rib and the petechiae in the eyelids would cause even more concern of a history of abuse.
All the experts agreed that in order to assess whether the spinal cord was swollen, the naked eye was best placed to identify it and the pathologist can feel the spinal cord at post-mortem. Although none of the experts could identify a precise mechanism of injury to give rise to a swollen cord, it was agreed that some form of flexion, extension or rotation injury was the most likely.
The consultant neuropathologists called - for the Crown Dr Smith, and for the defence Dr Whitwell - agreed that there was hypoxic damage some hours before death and if Harry died shortly before 9.37 p.m. when the 999 call was made, the hypoxic damage could have been caused from 5.30 p.m. onwards, because a least two hours had to elapse before death to account for the presentation of the nerve cells. At all relevant times the appellant was alone with Harry.
All the experts agreed that the haemorrhages on the surface of the brain were a non-specific indicator of smothering, but were entirely consistent with smothering and could have occurred immediately after smothering. The petechial haemorrhages in the eyelid were agreed to be consistent with smothering by Professor Berry, Dr Whitwell, Dr Rushton, Dr Williams, Professor Meadow and Dr Keeling. No other condition was found in Harry to account for the presence of the petechiae, and the experts regarded them as worrying features which, as Dr Rushton stated, raised the spectre of asphyxia.
In respect of the dislocation of the first rib, although there was an issue as to whether it was the result of injury before death, or whether it might have been a resuscitation injury, all the experts agreed that it would be very unusual to see a fracture dislocation of ribs from resuscitation, and particularly an isolated fracture not matched on the other side.
The strength of this medical evidence in respect of Harry was that, if the jury accepted Dr Williams's evidence about the spinal cord, there was an overwhelming inference that Harry had been subject to trauma shortly before death, and had hypoxic damage consistent with suffocation earlier in the evening.
The appellant never at any time gave a history to account for the fracture of the second rib, for which no natural explanation was available, and which occurred to a four week old, immobile baby. Such injury called for a credible account to account for it, but none was given.
The appellant's description of Harry slumped forward in his bouncy chair was demonstrably untrue.
Professor Meadow identified recurrent features in killings [initially] thought to be natural: the time of day, the fact that Harry had been well and had taken a feed; the inconsistency between the appellant's account and her husband's as to what he was doing downstairs; smothering is often combined with other abuse.
The untrue evidence given by Mr Clark about the time of his homecoming, which necessitated his recall at trial, was of the greatest significance in our judgment because had he arrived home at 5.30 p.m., it would have undermined the prosecution case. Mr Clark and the appellant gave evidence which initially vouched for the contention that the appellant was not alone with Harry, and did nothing to him during the evening. The fact that he had to be recalled to admit that he arrived home some 2½ hours later signified that the appellant had been alone with Harry, and that her husband could in not way vouch for her. It is further highly significant in our judgment that upon recall, he denied knowing that there was a prosecution allegation that Harry had sustained hypoxic damage earlier that evening when the appellant was alone with Harry, although he had been questioned by the police on that basis in April and July 1998, and the defence formally admitted service of the medical reports which contained this allegation. The credibility of Mr Clark had relevance not only to the circumstances of Harry's death, but also to his account of Christopher's nosebleed.
The reaction by the appellant to Harry's death in a conversation with the coroner's officer, Mrs Hurst, when she told the officer that she and her husband would try for another baby, struck Mrs Hurst as most unusual.
Taken separately there was a very strong case on each count. Take together we conclude that the evidence was overwhelming having regard to the identified similarities:
a) the babies died at the same age;
b) they were both found by the appellant and both, according to one version of the appellant, in a bouncy chair;
c) they were found dead at almost exactly the same time of evening, having been well, having taken a feed successfully, and at a time when the appellant admitted tiredness in coping;
d) on each occasion the appellant was alone with the baby when it was found lifeless;
e) on each occasion the appellant's husband was away from home, or about to go away from home;
f) in each case there was evidence of previous abuse: for Christopher an attempted smothering; for Harry an old rib fracture;
g) in each case there was evidence of deliberate injury recently inflicted: for Christopher bruising and a torn frenulum; for Harry hypoxic damage, petechial haemorrhages in the eyelid and fresh bleedings of the spine and swelling of the spinal cord;
h) the rarity of two natural deaths in one family with the first five features above present, and the extraordinary coincidence, if both deaths were natural, of finding evidence of old and recent abuse.
For all those reasons, we consider that there was an overwhelming case against the appellant at trial. 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. Had the trial been free from legal error, the only reasonable and proper verdict would have been one of guilty.
It follows that in our judgment the error of approach towards the statistical evidence at trial identified at paragraph 181 (Ground 3(c)) did not render the convictions unsafe. The appeal against conviction on each count is therefore dismissed.