GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Monday, 7 June 2004
Held at:
St James’ Building
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day One)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
--------------------------------------
MR K COONAN QC, of Counsel, instructed by Messrs Hempsons, appeared on behalf of the Doctor, who was present.
MR R TYSON, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on behalf of the Council and Mr Stephen Clark.
--------------------------------------
(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
--------------------------------------
INDEX
Page
HEADS OF CHARGE 1
APPLICATION RE INJUNCTIONS 4
OUTLINE OF FACTS 11
----------------------------
THE CHAIRMAN: Good morning. The Committee is going to inquire into the case against Dr David Southall. Dr Southall is present and is represented by Mr Kieran Coonan, Counsel, instructed by Hempsons Solicitors. Mr Richard Tyson, Counsel instructed by Field Fisher Waterhouse, represents the Council.
MR TYSON: Just one minor point on that, sir. I represent both the General Medical Council and Mr Stephen Clark as complainant.
THE CHAIRMAN: Thank you for that.
Before I ask the Secretary to read the heads of charge, I am conscious there are quite a lot of press in the room. Could I just ask two things: one is that everybody makes sure that they have their mobile phones switched off and, secondly, if people do leave the chamber that they would take whatever equipment they have with them and not leave it behind. That would be of great assistance for us.
Dr Southall, if you cold stand, please, and I will ask the Secretary to read the heads of charge.
THE COMMITTEE SECRETARY: The Committee will inquire into the following charge against David Southall, registered as of Academic Department of Paediatrics, City General Hospital, Stoke on Trent, Staffordshire, ST4 6QG, MB BS 1971 Lond:
“That, being registered under the Medical Act,
‘1. In November 1999 Sally Clark was convicted of the murder of two of her children, Christopher and Harry Clark;
‘2. On about 27 April 2000 you watched the “Dispatches” programme about the Sally Clark case that was broadcast on Channel 4 television that night;
‘3. As a result of information gleaned during your watching of the programme, on the next day you contacted the Child Protection Unit of the Staffordshire Police to voice your concerns about how the abuse to Christopher and Harry Clark had in fact occurred;
‘4. As a result of such contact, on 2 June 2000 you met
Detective Inspector Gardner of the Cheshire Constabulary, the senior investigating officer into the deaths of Christopher and Harry Clark, and in effect told him that, as a result of watching the programme, you considered that
a. Stephen Clark, Sally Clark’s husband, had deliberately suffocated his son Christopher Clark at a hotel prior to his eventual death,
b. Stephen Clark was thus implicated in the deaths of both Christopher and Harry Clark,
c. there was thus concern over Stephen Clark’s access to, and the safety of, the Clarks’ third child, Child A;
‘5. At the time of meeting Detective Inspector Gardner, you
a. were not connected with the case,
b. made it clear that you were acting in your capacity as a consultant paediatrician with considerable experience of life threatening child abuse,
c. were suspended from your duties by your employers, the North Staffordshire Hospital NHS Trust (“the Trust”),
d. knew that it was an agreed term of the Trust’s enquiries that led to such suspension that you would not undertake new outside child protection work without prior permission of the Acting Medical Director of the Trust,
e. had not sought permission of the Acting Medical Director prior to contacting the Child Protection Unit of the Staffordshire Police and/or meeting with Detective Inspector Gardner,
f. relied on the contents of the “Dispatches” television programme as the principal factual source for your concerns,
g. had a theory about the case, as set out in Head 4 above, that you sought to present as scientific fact as underpinned by your own research;
‘6. Your actions as described in Heads 3 and/or 4 and/or 5 were
a precipitate and/or,
b irresponsible and/or,
c an abuse of your professional position;
‘7. On 30 August 2000 you produced a report on the Clark family at the request of Forshaws, Solicitors
a At the time that you produced your report you
i. did not have any access to the case papers, including any medical records, laboratory investigations, post-mortem records, medical reports or x-rays,
ii. had not interviewed either Stephen or Sally Clark,
b Your report concluded that
i. it was extremely likely if not certain that Mr Clark had suffocated Christopher in the hotel room,
ii. you remained convinced the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark,
c Your report implied that Mr Clark was responsible for the deaths of his two eldest children Christopher and Harry,
d Your report was thus based on a theory that you had
about the case that you sought to present as scientific fact as underpinned by your own research,
e Your report declared that its contents were true and may
be used in a court of law whereas it contained matters the truth of which you could not have known or did not know,
f Your report contained no caveat to the effect that its
conclusions were based upon very limited information about the case held by you,
g When given the opportunity to place such a caveat in
your report you declined, by faxed email dated
11 September 2000, on the basis that even without all the evidence being made available to you it was likely beyond reasonable doubt that Mr Clark was responsible for the deaths of his two other children;
‘8. Your actions as described in Head 7 above were individually and/or collectively
a inappropriate and/or,
b irresponsible and/or,
c misleading and/or,
d an abuse of your professional position.’
“And that in relation to the facts alleged you have been guilty of serious professional misconduct.”
THE CHAIRMAN: Dr Southall, please sit down.
Mr Tyson, I gather you have an application.
MR TYSON: Sir, yes. Can I at the outset of this case deal with matters relating to the press as this case has attracted, as one can see, considerable press interest. Not only does Professor Southall have a high media profile but this case involves the Clark family. Mrs Clark, as you probably will know, was convicted of murdering her two infant sons but this conviction has been overturned on appeal.
In this hearing, sir, you will hear about the youngest surviving child of the Clark family, Child A, about whom there are two High Court orders and I would ask you, sir, if we can see a bundle of documents which ultimately is going to be bundle C1 and can I invite that to be distributed where I can show you the orders concerned. (Same handed)
THE CHAIRMAN: This bundle is C1.
MR TYSON: Can I ask you, sir, please, to look at page 94 of that, which is an order that was made, we understand, in November 1999 in the Family Division of the High Court of Justice. It is an order made in the care proceedings relating to Child A, and over the page at 95 can I just read for the record the order. This order, I anticipate, will be served on all the press that deal with this matter.
“It is ordered that:
1 Injunctions are hereby granted restraining until further order any person (whether by himself or herself or by his or her servants or agents or otherwise howsoever or, in the case of a company, whether by its directors or officers, servants or agents or otherwise howsoever) from:
(A) publishing in any newspaper, magazine or periodicals or broadcasting in any sound or television broadcast or by means of any cable or satellite programme service or by disseminating by means of any form of electronic communication howsoever (hereinafter referred to as ‘a publication’):
(a) the name and address of the above named minor (hereinafter referred to as ‘the child’) and/or
(b) the name and/or address of:
(i) any property or any institution or other establishment in or at which the child is residing or being cared for at any time (hereinafter referred to as ‘an establishment’) and/or”
and (ii) was deleted.
“© any picture being or including a picture of the child
IN EACH CASE in a manner calculated to lead to the identification and/or whereabouts of:
(i) the child and/or”
and we can delete (ii).
“(iii) in the case of any establishment (as so defined within this Order) of such establishment as being an establishment in or at which the child is residing or being cared for at any time.
(B) soliciting any information relating to the child:
(a) from the child; and/or
(b) from any person acting as a carer (as so defined within this Order)
© without prejudice to the generality of paragraph 1(B) above, attending at any address at which the child is known or thought to reside or known or thought to be present or at any establishment (as so defined within this Order) in or at which the child is residing or being cared for, with the intention of undertaking any of the acts prohibited by paragraph 1(B) above or of taking any picture of the child.
(D) notwithstanding the provisions of Section 12(2) of the said Act (but without prejudice to what is set out hereinafter) including in any publication, as so defined within this Order of the text, or a summary of the whole or any part of this Order any of those matters referred to at paragraph 1(a)(a), (b) and © above.
2 Copies of this Order, as endorsed with a Penal Notice, to be served by the solicitors for the Application and /or Mr R E Emery, the Tipstaff to the High Court and/or his deputies.”
Can you add, as a result of a subsequent order:
“Copies of this Order can be served by Field Fisher Waterhouse and the General Medical Council.”
Copies of the order were to be served on:
“(i) on such newspapers and sound or television broadcasting or cable or satellite programme or any person, company or other institution offering or operating any service for communication by electronic means as they may see fit, in each case by facsimile transmission or pre-paid first class post addressed to the Editor in the case of a newspaper or Senior News editor in the case of a broadcasting or cable or satellite programme service or any person, company or institution offering or operating any service for communication by electronic means; and/or
(ii) on such other persons as the solicitors for the Applicant may think fit, in each case by personal service –
AND the parties and any person or persons affected by the injunctions granted in paragraph 1 hereof above are at liberty to apply to the Court to vary and/or discharge the same on notice of not less than 2 hours during the working day.”
I pointed out there were one or two amendments made which I have dealt with. Could I ask you to turn back to page 92, and you will note there, sire, that an order was made before Mr Justice Hedley in the High Court of Justice, and can I just take you to that order, at the moment on page 93 and paragraph 2 thereof:
“The Information Dissemination Injunction”
(that is the one I have just read to the Committee)
“be varied for the purposes of the forthcoming hearing of the 2nd Respondent’s complaint against Professor Southall before the Professional Conduct Committee of the General Medical Council by”
and those are the matters which I added in the course of reading the injunction to you.
Dealing again with page 92 of that is a second matter which I have to draw to your attention, which is related to the first, which is this. In order for this hearing to see and to read papers relating to the care proceedings of Child A an application had to be made to the Family Court for those papers to be used. Permission was granted for these papers to be used on a basis that you will see at page 92, where it says, upon reading the witness statements, and then the next paragraph is this:
“ON THE BASIS THAT the leave granted below is made solely on condition that the Professional Conduct Committee of the General Medical Council agrees to anonymise the name of child A at the forthcoming hearing concerning the Second Respondent’s complaint against Professor Southall.”
That order effectively permitted, or went on to permit, the use of the care papers in this case.
Sir, that is all I need to say about the injunctions. There is another important matter and that is this: I would wish to draw the Committee’s attention through your Legal Assessor to the recent case of Mahfouz v The Professional Conduct of the General Medical Council [2004] EWCA Civ 233. It was reported in March of this year.
Sir, in that case the press wrongly referred to a previous finding against a doctor during the course of a PCC hearing. Issues then arose as to whether the PCC should carry on or recuse themselves. An issue also arose as to whether the hearing should be adjourned so that an application to the High Court could be made. The matter ended up in the Court of Appeal and the Court of Appeal gave some general guidance to committees such as yours in high profile cases. Perhaps I should read for your benefit, because it is my duty so to do, the conclusions in this case. I will pick it up at paragraph 47.
THE CHAIRMAN: Are there copies available for us?
MR TYSON: I have made a copy available to the Legal Assessor.
THE CHAIRMAN: Why do you not proceed. Perhaps we can get copies at your convenience.
MR TYSON: I am just going to read out two paragraphs of the judgment and we will ask your Legal Assessor to give you such advice as he feels fit, having heard from my learned friend as to this. Paragraph 47 of the Court of Appeal judgment in Mahfouz says as follows,
“47. The Committee should be advised by the Legal Assessor in the clearest terms, as they will already be aware, that they must decide the case solely on the evidence before them and that the 1987 disciplinary decision and any other matters referred to in publicity outside the hearings should be completely disregarded. This message will no doubt be reinforced as far as appropriate at the time by a specific disclaimer by Counsel for the General Medical Council.
48. Finally, I would express my strong regret at the expense and inconvenience that has been incurred by all parties as a result of apparently irresponsible reporting by newspapers concerned. I say apparently because we have not sought or heard any explanations from the newspapers concerned. It is to be hoped that a responsible reporter would realise that to refer to a previous striking off which had not been mentioned in the course of the proceedings would be likely to cause problems and if in doubt would seek clarification from the GMC press office. Unfortunately, under the present law there appears to be no sanction against such reporting in relation to the proceedings of the PCC.”
This is the passage upon which I rely,
“The unfortunate history of this case suggests that it may sometimes be necessary, at least in a case likely to attract substantial press attention, to advise members of the PCC to avoid reading any articles about the case, that it needs to be plainly understood that no public interest whatsoever is served by jeopardising the process before the General Medical Council’s Professional Conduct Committee.”
In the light of the guidance given by the Court of Appeal and in the light of the high profile that this case is or is likely to attach, the GMC would seek the Legal Assessor to advise you, because of the nature of this case, that you and your members should not read any articles about this case. Sir, those are my submissions at this stage.
There is an injunction here which we have, which is the one I have read out, which we would like to serve on all those present.
THE CHAIRMAN: Mr Coonan, do you have any observations?
MR COONAN: Sir, perhaps before that it is distributed perhaps it could be paused. It may detract attention from what I am about to say. Could I associate myself wholeheartedly with what is said. The principles set out in Mahfouz are particularly appointment to this case. Each of you have to ask yourselves whether, first of all, in the light of any material you may have read about in relation to this case, either in its narrow elements or indeed the wider elements, whether that would in any sense prevent you from fairly adjudicating upon this case. That is the first issue which arises as a general matter and is reinforced by Mahfouz.
I understand, secondly, that each of you were advised, quite properly, not to read or acquire any information about this case before you came into this room. I understand that advice was given to you last week. As I say, that is very sensible advice but it equally applies from this moment on. I do not draw attention to any particular features of press coverage, but it is a fact that this very morning there has been a significant degree of press coverage, a lot of it, I may say, wholly inaccurate.
It reinforces the point Mr Tyson has made. We re-emphasize the fact that you should not read or attempt to obtain access to any material relating to this case that is published or broadcast from this moment on. Sir, that is all I have to say.
THE CHAIRMAN: Legal Assessor.
THE LEGAL ASSESSOR: In relation to the injunction, I am sure the press will understand that whatever is said in this room which may identify the child, as the injunction stands, must be respected and complied with. I say nothing more about the injunction. The position is quite clear.
In relation to the matter of publicity, it is perfectly right that Mahfouz says the only evidence which can be considered in this case is what happens in this room in the course of this hearing. I strongly advise the Committee not to read about this case, to be cautious in all of your reading of newspapers in the next few days, to be careful about what is seen on television and heard on the radio. If you think you might be prejudiced by something on the television, switch it off, as with the radio. It is simply essential that nothing which could be said in this room comes to your attention in that sort of way. I think that is sufficient.
THE CHAIRMAN: Perhaps I could confirm from the Chair that in fact the Committee was advised last week that it should refrain from reading anything that appeared in relation to this case. If I can speak on behalf of the Committee, we are content that that restriction should remain upon us while this case lasts. If we have got through that bit of it, can I come back to you and ask you if there are any admissions.
MR COONAN: Sir, can I take you to the preamble, being registered under the Medical Act. That, of course, is admitted. I take you then to the substantive matters.
Paragraph 1 is admitted in its entirety.
Paragraph 2 is admitted in its entirety.
Paragraph 3 is admitted in its entirety.
Paragraph 4, the preamble, is admitted in its entirety.
Paragraph 4(a) is admitted in its entirety.
Paragraph 4(b) is admitted in its entirety.
Paragraph 4© is admitted in its entirety.
Paragraph 5, the introductory words, is admitted. I go to the sub-paragraphs.
Paragraph 5(a) is admitted in its entirety.
Paragraph 5(b) is admitted in its entirety.
Paragraph 5© is admitted in its entirety.
Paragraph 5(d) is admitted in its entirety.
Paragraph 5(e) is admitted in its entirety.
Paragraph 5(f) is admitted in its entirety.
Paragraph 5(g) is not admitted.
Paragraph 6, in its entirety, is not admitted.
Paragraph 7, the preamble, is admitted.
Paragraph 7(a)(i)… I should for completeness say (a) as to the preamble is admitted.
Paragraph 7(a)(i) is admitted in its entirety.
Paragraph 7(ii) is admitted in its entirety.
Paragraph 7(b), the preamble, is admitted.
Paragraph 7(b)(i) is admitted in its entirety.
Paragraph 7(b)(ii) is admitted in its entirety.
Paragraph 7© is admitted in its entirety.
Paragraph 7(d) is not admitted.
Paragraph 7(e) – I am going to read out the first part. “Your report declared that its contents were true and may be used in a court of law…” That assertion is admitted. The latter part of (e) is not admitted.
Paragraph 7(f) is admitted in its entirety.
Paragraph 7(g) is admitted in its entirety.
Paragraph 8, in its entirety, is not admitted.
MR TYSON: I apologise to my learned friend for not raising this with him before. In relation to head of charge 5(e), there is an “and/or” in there. I ask whether he would admit it with the deletion of the word “or”.
MR COONAN: The deletion of the word “and” which I think my learned friend is seeking by way of amendment…
MR TYSON: No. I am seeking the word “or” to be deleted. There was no permission both before contacting the Child Protection and before meeting with the Detective Inspector.
MR COONAN: For my part, I suspect it is semantic, that it does not make any difference to the admission I have made.
MR TYSON: I ask for the word “/or” to be deleted in the head of charge.
THE CHAIRMAN: Yes. Well, perhaps I can try and take us through that again. The following Heads of Charge are admitted and therefore found proved: Head 1; Head 2; Head 3; Head 4, both the preamble and then 4 a., 4 b., 4 c.; Head of Charge 5, the preamble and 5 a., 5 b., 5 c., 5 d., 5 e. amended to withdraw "or" so that it is "... contacting the Child Protection Unit of the Staffordshire Police and meeting with Detective Inspector Gardner", and Head 5 f.; Head 7, the preamble and 7 a. (i), 7 a. (ii), 7 b. (i), 7 b. (ii), 7 c., 7 f. and 7 g. I note what you said about 7 e. I think if part of the Head of Charge is not admitted then it is better to leave the Head of Charge dealt with as being not admitted. So, these having been admitted are therefore found proved.
Now, Mr Tyson?
MR TYSON: Sir, Professor Southall is a Consultant Paediatrician and his clinical and his research work in the field of Child Protection has in the past attracted much controversy.
It is important at the outset to state what this case is not about. It is not about the headline making areas of Munchausen Syndrome by Proxy. It is not about the controversial area of covert video surveillance of parents with their infants. At its height, or at its heart, this case is about Professor Southall's dogmatic belief in his own expertise which he brought to bear in a case in which he had no professional involvement but in which he intervened in a high handed fashion largely on the basis of watching a programme on television. This is a case the facts of which, say the Complainants, are both astonishing and extremely serious.
In a nutshell, as a result principally of watching a Channel 4 television programme about Sally Clark and her convictions for murder of her two infant sons, Professor Southall formed a theory about the case which was that Stephen Clark, Sally Clark's husband, had deliberately suffocated the eldest son, Christopher, a few days before his eventual death. As a result, it was clear to Professor Southall that Stephen Clark had gone on to murder both of his sons by suffocating them both. In due course Professor Southall went further and stated that it was beyond reasonable doubt, i.e. to the criminal standard of proof, that Mr Clark had committed these double murders.
It followed in Professor Southall's logic that the Clarks' surviving child, Child A, was unsafe in the care of his father and should be removed from his care; a step which, due to Professor Southall's eminence and stature, was seriously considered by the Local Authority.
The Complainants say that to so interfere and so trenchantly and with such little information, and not back down when the difficulties of his position were put to him, amount to serious professional misconduct.
The background facts to this case are, as we can see by the admissions made today, largely incontrovertible. It will be for this Committee to determine the proper inferences from them and to decide if Professor Southall's actions were blameworthy in the matters in the way suggested in the Heads of Charge.
So, to go back to the history, Sally and Stephen Clark are both solicitors. Their first son, Christopher, was born in September 1996. On 4 December 1996 there was an incident in a London hotel when Christopher had a nosebleed, at a time when Mr Clark was in sole charge of him, and we will come back to that incident in more detail later.
Some nine days later, Christopher Clark died unexpectedly at home aged eleven weeks. He was in apparently good health and at the time he was reported to be at home with his mother; his father being at an office party. On the basis of a post mortem by a Home Office Pathologist, his death was reported to be due to lower respiratory tract infection.
The Clarks then had a second child, Harry, who was born in November 1997. Harry died suddenly and unexpectedly at home aged eight weeks in January of 1998. The Home Office Pathologist, who was the same one who had examined Christopher, examined Harry and concluded that Harry had been shaken to death. As a result of these findings, Christopher's death was re examined and it was concluded that he had been deliberately suffocated.
Both parents were arrested on suspicion of murder of both their children. In the event, only Sally Clark was charged with such murders and she was so charged in July of 1998.
In November of 1998 Sally gave birth to her third child the Clarks' third child Child A. With the agreement of the parents, Child A was taken into care and placed with Foster parents on or about the day he was born. There were thus then two concurrent legal proceedings going on side by side the criminal proceedings relating to the allegations of murder and the childcare proceedings relating to the future of Child A.
Sally Clark was tried for the murder of her two children and was convicted on 9 November 1999. That is Head of Charge 1. After her conviction the Care Court permitted Stephen Clark to look after Child A, who was then aged about a year to look after him full time.
Having reached November 1999 in the chronology, it is important to step back for a little time to see what was happening in Professor Southall's professional life. In 1999, Professor Southall was a Consultant Paediatrician at the North Staffordshire Hospitals NHS Trust. He was also Professor of Paediatrics at the related University of Keele.
Sir, his Curriculum Vitae is in the Bundle C1 at Page 121 to 138. We pick it up at Page 122, and I say right at the outset that it is clearly an extremely impressive Curriculum Vitae and he is clearly an extremely distinguished man in his field.
You will note on Page 122 the personal details about Professor Southall and, as his titles, it is important to note not only that he was Professor of Paediatrics but, secondly, Honorary Director of Child Advocacy International. I mention that because you will see reference to that organisation in subsequent correspondence that we come to.
We see that he qualified as a doctor in 1971, was made Member of his College in October 1973 and in 1991 was made a Fellow of his College and in 1997 was made Fellow of another College. In December 1998 he was awarded an OBE, for his work relating to children in Bosnia and Herzegovena, and he has a number of awards.
His career is set out on the next page, sir, and one can see there that he became a Consultant by 1986 and became a Professor by 1992. And then his research and he summarises his research that he has undertaken and if I can just highlight a number which may or may not be of interest to the Committee.
We can see at No. 6 his research interest in the area of Sudden Infant Death Syndrome, sir, and that is repeated at No. 15 and at No. 18 and No. 28 and at No. 32. And then, if he will forgive me, rather woollily he expresses at No. 41 that he has a research interest in concepts regarding the nature of life threatening child abuse.
Clearly he has published a number a great number in Peer Review Journals which we pick up at 128, of which number 115 is a seminal article published in the journal Paediatrics in November 1997, to which a great deal of reference will be made in this case. It is headed “Covert Video recordings of Life-threatening Child Abuse: Lessons for Child Protection” and this is, as you will hear, an article that Professor Southall provided a great many of the participants in this saga.
Clearly, as I stated earlier, it is a distinguished career but it is right to say that on the way Professor Southall as acquired a number of detractors, a number of them parents unhappy with his clinical and with his expert witness work in the area of child abuse, and also unhappy with the nature and quality of his research work, particularly in the area of covert video surveillance. Covert video surveillance is known by its initials, CVS. It may assist the lay members of the Committee to know that it essentially means what it says. Selected parents were secretly observed with their children in a hospital room and were seen and recorded on a number of occasions harming such children until staff intervened.
In January 1999 a formal complaint was made about Professor Southall to his Trust. Dr Chipping, from whom you will hear, was the Acting Medical Director of the Trust and she had overall responsibility for dealing with the complaint. Sir, from now on the story can be largely told through the documents in C1 and I am afraid I am going to have to read large numbers of them, as it were, into the record (to use the American expression).
Sir, June 1999, which is the time that we have reached, to put it in context, was the period after Sally Clark had been charged but before her trial in October and November of that year. In June 1999 Dr Chipping wrote to Professor Southall about the complaint against him, and that is the letter which you will see at pages 1 to 4 of C1, which I intend to read to the Committee – largely, can I say, sir, so that when I call the witnesses matters can be dealt with much more shortly.
This is a letter, as we can see from the head, from Dr P M Chipping, Acting Medical Director of the North Staffordshire Hospital addressed to Professor Southall. She says:
“I write in response to correspondence received by your MDU representative, Dr. Brown. I had originally planned to advise you of the issues set out in my letter at a meeting with yourself and your MDU representative. However, due to leave arrangements, the need to proceed quickly with the investigation into the allegations arising from Mrs. M’s complaint, and the request for clarification of the purpose of our meeting from Dr. Brown, I felt it would be beneficial to set out the issues in writing and then, if you still wished to meet to discuss matters in more detail, we could do so.”
The next paragraph deals with physical arrangements. The next paragraph:
“You have of course already received a copy of the report into Mrs. Mellor's complaint.”
Then he is reminded about how he should treat it. Then the bottom paragraph:
“I can confirm there are a number of allegations arising from the Report which require further investigation and that, in line with Section 3 of the Trust's Procedure for Dealing with Cases Involving the Professional Conduct and Professional Competence of Medical Staff, having considered the allegations and taken the advice of the Director of Human Resources, I have concluded that they are all allegations of personal misconduct to be dealt with under the Trust's Disciplinary Procedure.
The allegations are:
1. ‘Professor Southall instigates care proceedings in order to appear as an expert witness for which he is paid a phenomenal amount of money’
The Trust needs to investigate this allegation.
2. ‘Why are a Senior Judge, who sits on Child Care Proceedings, and a Senior Social Services Worker involved in Child Advocacy International?’
The Trust needs to satisfy itself that CAI work is not being undertaken on Trust premises in time ascribed to NHS contractual sessions and that there is no breach of security or confidentiality.”
This is the organisation, sir, I made reference to.
“3. ‘Why were documents relating to CVS held in CIA files?’
The Trust needs to satisfy itself that there is no contamination of hospital records with CAI documents and vice versa.
4. Covert Video Surveillance
The Trust needs to establish the local history of CVS and to establish whether CVS video recordings are still being used for training purposes with or without consent; whether security and confidentiality are being breached; the level and extent which the Trust is assisting other Trusts with the operation of CVS.
It should also be noted that there is a further employment related issue which we shall be investigating, this is not an allegation against yourself but that ‘the Trust has been aware of facts surrounding Professor Southall for five years and has chosen to ignore them’. An investigation will be undertaken into whether the employment and supervision of yourself has been managed satisfactorily over the past few years.
During the course of the investigation, in order to protect your own position and that of the Trust, you will be required to conform with a range of actions:
• Firstly, I request that due to the investigation and in particular allegation 1, you should not undertake any further Category 2 work without my express written authority.”
I anticipate Dr Chipping will help the Committee as to what Category 2 work is, but my understanding of the position is that Category 2 work is work undertaken when a doctor is asked to provide a report on a patient not under observation or treatment at the Trust. Child protection work, where an opinion is requested on a child not under the care of the Trust, would be classified as Category 2 work.
It says:
• “Firstly, I request that due to the investigation and in particular allegation 1, you should not undertake any further Category 2 work without my express written authority. I noted that very sensibly you have recently sought the advice of [the man there mentioned] on a particular issue regarding care proceedings to which I have responded separately. I appreciate that there will be some such work currently being undertaken where, in the interests of your patients, it will be appropriate for me to give such authority. This arrangement will need to be in place at least until the conclusion of the investigation.
• I shall also be looking to you to assist me in identifying all Category 2 work you are presently undertaking.
• In addition, I shall also require your assistance in ensuring the separation of charitable work from Trust work.
• Further, that you are required to remain in the Trust for your fixed sessions including your on-call commitments.
• And finally that you are not to undertake any further CVS while the investigation is taking place.
• You are also reminded that, as per our previous discussions, you are asked not to undertake any new research.
I feel it would be helpful and beneficial to all parties during the investigation for me to put monitoring arrangements in place in support of the above actions. I can confirm that your Clinical Director will need to meet with you on a weekly basis to undertake this role.
It then deals with the support offered to Professor Southall. The next paragraph:
“Under the Trust's Disciplinary Procedure, with delegated authority from myself, Dr. H.G. Boddie, Clinical Director Neurosciences, will now be investigating the allegations together with the support of the Human Resources Manager.”
It deals with how that is to take place, and then the penultimate paragraph from the bottom:
“The Disciplinary Procedure provides a timescale of 4-6 weeks for completing the investigation. If the investigation is likely to exceed this timescale, you will of course be notified.
Once Dr. Boddie, the investigating officer, has gathered all the relevant facts and presented these to me, I will decide whether:
a) a disciplinary hearing is required under the formal procedure
b) some other approach is more appropriate or
c) there is no case to answer.
In summary I confirm that during the course of the investigation you are required to:
• agree to not to undertake any further. Category 2 work without my written authority;
• assist in identifying all Category 2 work you are presently undertaking;
• remain in the Trust for your fixed sessions, which will be discussed with you by [a man there mentioned];
• co-operate with the monitoring arrangements which will be put in place;
• undertake no further CVS within this or any other NHS Trust while the investigation is ongoing;
• assist in the separation of charitable work from Trust work.
If you do not co-operate and agree to the above arrangements, I will be required to consider suspending you from your duties, in accordance with the arrangements set out in the Trust's Disciplinary Procedure. I hope that you will accept that these arrangements have been put in place in the interests of all parties.”
Then assurance is given about matters being carried out as soon as possible and if there is a problem for him to get in touch.
So it is important that you know that he had not been suspended at this stage, he was just asked to comply with matters. Indeed, Professor Southall then did reply, and we can see on letter 5 to Dr Chipping that there he says:
“Attached to this letter are a list of current legal case in which I am undertaking category 2 child protection work. These were all in place before the enquiry started but as you know I am not taking on any new category 2 work until the enquiry has finished or until you give me express permission to do so.”
That is a passage on which the complainants rely.
Then he lists a number of cases, the precise names of which have been redacted, in which he was currently engaged at that time on Category 2 work and gives the instructing source on the right-hand side of the column.
Sir, in October 1999, just before the Sally Clark trial, Dr Chipping sent a very important letter to Professor Southall about his child protection work, a letter upon which the complainants rely. This is the letter at page 7. It is addressed to Professor Southall, it is dated 15 October 1999:
“I write to provide further clarity in relation to your agreement to comply with the Trust’s request in ceasing work on any of your current child protection cases.
As you are aware, the Trust has made this request on the advice of the inter-agency review panel. Until the panel are at a stage in their inquiry to advise otherwise, your compliance with this request is required.”
This is the important bit:
“I will write to you to confirm if this position changes. Until you receive written confirmation from myself, you should not undertake any child protection work.
I am, of course, mindful of the impact this request may have in terms of progressing the different cases and I hope to be able to provide further clarity in respect of your compliance with the Trust’s request following the inter-agency review panel’s next meeting on 27th and 28th October 1999.”
Sir, the complainants submit that when he was asked to not undertake any child protection work that this was much wider than the previous request that he should not undertake any Category 2 work. It includes, for instance, in our submission, child protection work within the Trust or/and, we submit, the actions that Professor Southall was later to take in relation to the Clark case.
This submission is fortified by a letter that Professor Southall himself wrote shortly thereafter to one of the organisations who had instructed him on a medico-legal basis in a Category 2 case brought by the Tameside Police. You will see that that is a letter from Professor Southall dated 8 November 1999 to an officer in the Tameside Family Support Unit, and he writes to that officer indicating the name of the case and says as follows:
“You are probably aware that the child protection work which I undertake, both at my hospital of employment and as a category 2 expert is being investigated by the North Staffordshire Hospital NHS Trust in response to serious, albeit unsubstantiated, allegations concerning child protection issues. This investigation involves an inter-agency analysis of the work of myself and my colleagues. I have been advised by the Acting Medical Director of North Staffordshire Hospital NHS Trust to discontinue all of my child protection work including category 2 protection work, until this inter-agency inquiry has reported. If I do not agree to do this voluntarily I will be ordered to do so by my employers at the NHS Trust. I have agreed to comply with this request as of 11th October 1999.
This means that until the inquiry has completed I will be unable to finish or produce any further reports regarding the case on which you have instructed me.”
And he asks him to contact him if there are any matters arising.
Sir, these letters, letter number 7 and letter number 8, form the foundation of head of charge 5d, which has been admitted.
Sir, in November 1999 the two panels set up by the North Staffordshire Trust reported to Dr Chipping. One of the panels related to child protection work and another was related to research work. Dr Chipping considered that the report of each panel raised issues of a serious nature which required further enquiry under the Trust’s procedures.
Further, she considered that the issues raised were deemed to be so serious that Professor Southall was suspended with immediate effect on 29 November 1999.
Sir, the matters I have just set out to you are set out in the letter at pages 9 to 11 in the bundle. The letter is addressed to Professor Southall on 3 December 1999 from Dr Chipping.
“I write to confirm the main points of our meeting held on Monday, 29th November 1999, at which you were accompanied by a member of the BMA Legal Department.”
The Director of Human Resources was also present.
“I informed you that the purpose of the meeting was to provide a summary of the concerns which had been raised by the Panels who had recently investigated child protection and research issues within the Department of Paediatrics at North Staffordshire Hospital and to confirm the next steps and actions which were not required. I explained that I was holding this meeting in the capacity of Acting Medical Director.
It was confirmed that both Panels conducting separate investigations had raised issues of a serious nature which will require further inquiry. Mrs Tinston provided the detail in respect of these issues that was available at this stage.
It was confirmed that, given the issues that had been raised, the Trust would be obliged to conduct a preliminary inquiry to establish whether a prima facie case exists under the Trust’s Procedure for Dealing with cases involving the Professional Conduct and Professional Competence of Medical Staff. It was further confirmed that Dr W. Lenney, Clinical Director for Hospital Paediatrics, will be conducting the preliminary enquiry on behalf of the Medical Director, and he will be supported in this by Mrs Tinston. You were advised that as part of the preliminary enquiry process you will be interviewed by Dr Lenney and this will provide an opportunity for you to put forward your views and statement of case around the issues being raised by the panels. At this meeting you will clearly have the right to be represented by your BMA representative if you so wish.
It was noted that the Trust’s Procedure states that the preliminary enquiry should aim to be completed within four weeks. However, given the Christmas and New year period fall within this 4 week period, this will inevitably build in delays.”
It deals with matters of delay and matters of procedure in relation to that. In the next paragraph,
“It was also noted at this stage that the detailed allegations as to whether the matters concern professional conduct or competence will be provided.
You were then advised that, due to the seriousness of the issues raised by both Panels, it was felt that, having given due consideration it will be necessary to suspend you from your duties with immediate effect for the duration of the preliminary enquiry. I confirmed that I was fully aware of the impact of this action on you as an individual but felt that in order to assist the investigative process and in the interests of patients, the service and indeed yourself, I felt that this was the only course of action available at this stage. That said, I stated quite clearly that suspension is a neutral act – it is not a disciplinary sanction nor should it be seen as any type of punitive measure. You were advised that suspension will be on full pay and that we would provide an absolute commitment to keep your suspension to a minimal period. As part of the Trust’s Procedure it is necessary to ensure that the suspension is reviewed every two weeks and that this is reported to the Chairman of the Trust. You will also be informed of the outcome of the review of suspension, the purpose of which is to satisfy the Trust that it has no alternative but to continue to maintain your suspension from duties. I re-emphasize that all other options had been considered, that is limited and alternative duties, but, given the issues raised by the Panel, this cannot be accommodated. I did stress, however, that if at any stage during the investigation the position changes, then the decision to suspend will be considered.
I then went on to outline the terms surrounding your suspension from duties. I set out that this required you to cease to undertake any NHS related duties. This included any contact with secretarial, medical, nursing or other staff at the Trust in relation to your NHS related duties. If for any reason there was an urgent need to make contact in respect of any issue whatsoever then this must be done through the Medical Director’s offices and not directly under any circumstances. Similarly, you should not enter Trust premises without express permission of the Medical Director.
It was confirmed that arrangements will be made for Dr Lenney to meet with you immediately after our meeting to pick up any personal items that you will require from your office and to provide a hand-over to Dr Lenney, including any arrangements for cover, etc. You were advised that the Trust is obliged to inform other agencies for whom you are undertaking work in your capacity as a Consultant at North Staffordshire Hospital of your suspension from duties. We requested that we would prefer to do this with your co-operation. It was identified that Keele University and the instructing authorities in any current Category II cases would be the most immediate concerns.
We discussed one of your current category II case in some detail. Due to the imminent appeal court hearing of the J case you made contact with CPS at our meeting and informed them of your current position.
You were advised that the Trust would only be issuing a media press release in response to any specific enquiries, a copy of the draft release is enclosed. It was noted that the Trust would be making no further comment on this issue at this stage and you were advised not to make any comment to the press whilst this preliminary hearing was ongoing.
You were asked that, during the period of suspension you should make the Medical Director aware of your general whereabouts given that we will be required to make contact with you to make arrangements to meet as part of the preliminary enquiry.
You were also advised that if you had any plans to attend any conferences or meetings outside the Trust, in your capacity as a Consultant at North Staffordshire Hospital, then you should make arrangements to cancel these.
It was noted that there may be a range of queries which you needed to raise once you had time to consider the impact of the suspension from duties and that it would be likely that we would need to arrange to meet again to discuss these. May I suggest that we liaise…”
Etc.
“However, in the interim period, if you have any queries whatsoever regarding the terms of suspension and the next steps of the preliminary enquiry, then you should contact the Medical Director’s office for advice.”
That dealt with the impact of the suspension on the doctor concerned. Sir, that fact of the suspension relates head of charge 5©, which has been admitted.
THE CHAIRMAN: Mr Tyson, at some stage very soon I think it would be helpful if we took a short break. I am in your hands. I do not want to disrupt your flow.
MR TYSON: This is as convenient as any. Can I say, sir, that in the course of my opening I will be showing the Committee a video recording of the “Dispatches” programme itself. That video recording will take 50 or 55 minutes to watch. I am content to take short break now, to take you through about 15 or 20 minutes more of my opening and then we will reach the video, or I can carry on until we reach the video in the chronology.
THE CHAIRMAN: Let us see how we go. Let us take a break now and start again at quarter to twelve.
(The Committee adjourned for a short time)
THE CHAIRMAN: Mr Tyson, before asking you to resume, one of the Panel members has had her memory slightly jogged and has a very peripheral, we think, potential conflict of interest. I think in these matters it is better if this is made public and we will ask the two Counsel to respond to that. I am going to ask Miss Langridge if she would say what has come back to her memory.
MISS LANGRADGE: Chairman, in 1999 I was the Secretary of the inquiry into paediatric/cardiac services at the Royal Brompton Hospital, which looked at the performances of paediatric/cardiac services. In looking at the CV of Professor Southall, I realise that he had been employed at the Brompton Hospital prior to the time that I was undertaking this inquiry in 1999/2001, and that a number of research reports included doctors who were the subject of the investigation. We neither wished to or did in fact interview Professor Southall at that point in time.
THE CHAIRMAN: Mr Coonan, could I ask you?
MR COONAN: Could I take instructions? I do not think it is for me personally to respond.
THE CHAIRMAN: We will take a moment for you to speak to Professor Southall. (Pause)
MR COONAN: Sir, thank you very much. I have no observations to make. There is no objection to the Committee member continuing, so far as Professor Southall is concerned. May I say straightaway that we are very grateful that that matter was brought up.
THE CHAIRMAN: I must say that I think these things are better aired and not coming to light subsequently. Mr Tyson, would you like to continue.
MR TYSON: I say for the record that we also have no observations to make on that. As far as the practicalities are concerned, what I would anticipate is that from now on I will take you up to and including watching the video. I would anticipate that at the end of watching the video is the time to adjourn for lunch.
THE CHAIRMAN: I think that is entirely appropriate.
MR TYSON: Sir, we have reached November 1999, where Professor Southall has been suspended with immediate effect from his duties. You will recall from the letters that preliminary panels were set up to deal with the two main issues, which were child protection issues and research issues. Sir, those two panels reported in January 2000. As a result, Dr Chipping had to undertake further investigations. During the course of these further investigations Professor Southall remained suspended. That is set out in the letter to Professor Southall at pages 12 to 15 of your bundle. We can see that this is a letter dated 17 January to Professor Southall from Dr Chipping,
“I write to confirm the current position regarding the preliminary enquiry into matters concerning your professional conduct and competence.
As you are aware, it was on the basis of the initial concerns raised by the external multi-professional panel and the external research panel that I took the decision to suspend you from your duties whilst a preliminary inquiry was conducted under the Trust procedure for dealing with cases involving professional conduct and professional competence of medical staff.
I now enclose a document presented in 5 sections which includes the findings of the external multi-agency review panel and the research panel.
This document was received by the Trust Board on Friday, 14 January 2000 and they have approved the recommendations set out in Section E.
These two separate reports from the two external panels will form the basis of the preliminary inquiry report. However, I must now undertake further investigation which will include a meeting with yourself and your representative before I can form a view whether a prima faci cases exists and there are specific allegations to answer. Dr Lenney …will be assisting me in carrying out this investigation.”
She says she would like to meet him.
“Dr Lenney and Mrs Tinston would like to meet you as part of the preliminary enquiry process.
I can confirm that the allegations which have been identified from the two reports are as follows:-
Issues relating to Child Protection
That on a number of occasions you have acted outside the accepted standards of good practice for child protection work and the requirements of the Children Act.
This can specifically be identified through the following:-
• That for the majority of time in which covert video surveillance was undertaken in North Staffordshire there was a failure to work within an agreed multi-agency protocol.
You appear to have repeatedly misled the Trust on this issue.
• The inappropriate use of cover video surveillance in child protection cases.
• The improper use of CVS videos for teaching and public viewing resulting in a failure to protect patient confidentiality.
• Your failure to keep adequate records in respect of medical notes and CVS video tape recordings.
• A failure in your duty of care resulting in children being exposed to risk or of suffering actual physical harm.
• Your failure to adhere to multi-agency child protection planning procedure.
• Your failure to take due regard of other clinicians/professional opinions within the multi-disciplinary team involved in child protection.
• That you included inaccurate and inappropriate information in written medical notes/court reports.
• Your inappropriate and unprofessional involvement in patient care where you are not the responsible consultant.
• Your lack of balanced judgment in making certain clinical diagnoses.
The specific issues relating to the above allegations are set out on pages 13 and 14 of the internal Trust report into child protection issues in support of the multi-agency views and Section B of the enclosed document.
The very detailed information referred to in this report, i.e. letters, notes etc. is also enclosed with this correspondence.
Issues Relating to Research
• That you pursued multiple clinical research studies that were poorly designed and therefore unlikely to produce new knowledge of worth.
• That you had insufficient regard for the ethical standards that should surround all clinical studies in babies/children and therefore failed in your duty of care to children.
• That you were selective in presenting the advantages of CNEP to the local Research Ethics Committee, thus potentially misleading that Committee.”
If the Committee wants to know what CNEP is, it is continuous negative extra thoracic pressure.
THE CHAIRMAN: I was just asking the question.
MR TYSON: It continues,
“The specific issues relating to the allegations are set out in Section C of the attached document.
The detailed information which was reviewed by the external panel on research will be made available to you.
I am aware that the timescale of the preliminary inquiry is extended beyond the 4 weeks set out in the Trust’s procedure.”
It deals with matters of procedure and then the final paragraph on that page,
“Finally, I can confirm that the Trust Board have reviewed your current suspension from duties and believe that this should continue whilst the preliminary enquiry is being conducted. I should remind you that suspension is a neutral act and that you will remain on full pay during this period.”
Sir, we have now reached early 2000, both in relation to Sally Clark, who had been convicted in November 1999, and in relation to Professor Southall who had been suspended, also in November 1999.
Stephen Clark never accepted the jury’s majority verdict that his wife had murdered their two eldest children.
An appeal was mounted against the convictions and Mr Clark will tell you, I anticipate, that he and others worked ceaselessly to provide or find further material to help prove her innocence.
Mr Clark will tell you that he was approached by many media organisations who wanted him to tell them his story, but that he refused. However, after discussions with his solicitor he eventually agreed to co operate with a production company called "Just TV" in making a television programme about his wife's case.
Mr Clark believed, after discussions, that the programme would help highlight deficiencies in the prosecution case and would assist in his wife's appeal. I anticipate that Mr Clark will also tell you that he reluctantly agreed to take part in this programme on that basis and also he hoped that the programme would counter some of the very hurtful media reports that were prevalent at the time.
The programme was made and was subsequently broadcast by Channel 4 under its "Dispatches" series title. It was broadcast on 27 April 2000. Sally Clark's appeal was due to be heard in the Court of Appeal in June of 2000.
Professor Southall had been following the Sally Clark case, through various websites, and he watched this television programme and that is admitted at Head of Charge 2 and it is now appropriate that so should we.
Can I say that there are two breaks in the course of the video which is when the commercials would otherwise have been shown. The commercials have been deleted.
THE CHAIRMAN: I am pleased to hear it.
MR TYSON: But the length of time that the commercials would otherwise have taken is the time when we will have to sit and gaze into space. That happens twice, sir.
THE CHAIRMAN: I am just wondering if it would be appropriate for us to try and move a bit closer to the screen because it is quite small. I mean, what do the Members of the Committee think?
MR TYSON: Can the screen move closer to you?
THE COMMITTEE SECRETARY: No, we tried that this morning.
THE CHAIRMAN: Are people content?
MR TYSON: Well, perhaps if I take my box away. You see, it is important that all Committee Members see all of this programme and do not have to strain their eyes.
THE CHAIRMAN: Well, it might be better if we moved into the middle here and find an appropriate position.
(The video was played to the Committee)
MR TYSON: Sir, can I formally ask that the video be made C2 in the documentation. There is one other preliminary matter, which I apologise to the Committee for not raising before. The complainants intend to call expert evidence in this case and we have an expert, Professor David, who we intend to call. I have discussed this matter with my learned friend, because Professor David’s help to the Committee is not only as an expert witness, but he is also being called as a witness of fact. I discussed with my learned friend and he concurred that Professor David could sit in in the course of my opening and the giving of evidence. I forgot, and I apologise for this, to raise before the Committee whether the Committee would allow it. He has been in. He is the gentleman behind me. I formally seek the Committee’s leave. I apologise for not raising it.
MR COONAN: Sir, I do not object. Of course, it is entirely a matter for you what approach you adopt.
THE CHAIRMAN: I think we are content.
MR TYSON: Sir, this may be a convenient time.
THE CHAIRMAN: I think so. We will adjourn now for lunch and start again at two p.m.
(The Committee adjourned for lunch)
THE CHAIRMAN: Mr Tyson?
MR TYSON: Sir, you have seen the video and you will have noted from that that it was in April and the Court of Appeal was to hear the matter in the June of 2000. They did hear the matter in the June of 2000, but reserved the decision and only came out with their decision in October 2000. That decision was to reject Mrs Clark's appeal but, after the discovery of further medical evidence indicating that Harry may have died from natural causes, the matter went back to the Court of Appeal for a second time in January 2003 and then her convictions were quashed.
Sir, as we know and it has been admitted in Head of Charge 2 Professor Southall watched this programme and, to use his own words, he was stunned when he watched it. There came a time later when he wrote a report setting out his views, which we will examine later, but at the moment can we just go to Page 45 in the bundle to see what Professor Southall's immediate reactions were and what he says he then did. If we pick it up "IN CONCLUSION":
"I was stunned when watching this television programme since it appeared extremely likely if not certain to me that Mr Clarke must have suffocated Christopher in the hotel room. I felt that the police had been misled into believing that Mrs Clarke could have suffocated Christopher before she left the hotel and that the subsequent bleeding was a delayed consequence of this. My experience with cases of intentional suffocation, where there was nasal or oral bleeding, does not concord with this view of the expert advice given to the police. From my experience the bleeding always occurs simultaneously with the process of intentional suffocation. I was aware of a third child in the family who could be receiving care from Mr Clarke. Consequently, the next morning I contacted the Child Protection Division of the Staffordshire Police to report my concerns",
and I will come back to the whole of that report in its chronological sequence in due course.
Sir, Professor Southall did the next day after the television broadcast, as he set out in his report, contact the Child Protection Unit of the Staffordshire Police and he outlined his concerns to a Detective Constable Gibson from whom we will hear.
Detective Constable Gibson, I anticipate, will say that he knew and had met Professor Southall in the course of his child protection duties and knew that he was a Consultant Paediatrician at the North Staffordshire Hospital. Detective Constable Gibson cannot now himself recall precisely what Professor Southall said to him, but one thing that we do know is that he told Professor Southall that it was not a Staffordshire Police matter but a Cheshire Police matter and that he would pass on Professor Southall's concerns to the Cheshire Police and to the Officer in this case in the criminal case which he did which is a Detective Inspector Gardner of that force from whom you will also hear.
It is clear from a note made by Detective Inspector Gardner, which we will read in a moment, that Professor Southall told DC Gibson that Stephen Clark had attempted to smother Christopher in a hotel room and that he, Professor Southall, had concerns over the involvement of Mr Clark in the subsequent deaths of his two sons. That is Head of Charge 3, sir, which is admitted.
What Professor Southall did not do before telephoning the Child Protection Unit and thus get himself involved in child protection issues relating to the remaining Child A what he did not do was to contact Dr Chipping of the North Staffordshire Hospitals Trust. You will recall the letter at Page 7 and perhaps we can just re-look at that for a moment. It is the last sentence of the second and middle paragraph of the letter to Professor Southall:
"Until you receive written confirmation from myself, you should not undertake any child protection work".
It is clear in our submission that he, by getting involved in this way with the Police, this was Child Protection work and no prior permission had been sought from Dr Chipping.
Sir, Professor Southall's concerns were also passed on to the Crown Prosecution Service. The information reached Mr Blomeley, the Branch Crown Prosecutor who was responsible for Sally Clark's prosecution. You will hear from the prosecutor in due course but, as a result of Professor Southall's information, he wrote two letters he, the prosecutor first to Sally Clark's solicitors, who were dealing with the appeal, and then to Cheshire County Council who had instigated the care proceedings.
These are the letters in your bundle at Page 16, sir, which is a letter to the solicitors there identified who were, as I understand it, Sally Clark's criminal solicitors. It is dated 9 May, it is from a Mr Blomeley and he writes:
"Dear Sirs
Re: SALLY CLARK
We write to pass on some information which has come into the possession of the Prosecution following the Channel 4 television programme 'Dispatches' shown on 27 April 2000.
A consultant paediatrician has contacted the police since watching the programme. The doctor has no prior knowledge of the case and whilst having no doubt that both babies were unlawfully killed has expressed reservations about the role of Stephen Clark in both deaths.
Out of an abundance of caution we thought it proper to draw this to your attention. We are copying this letter to Cheshire County Council in view of the child protection issues which may conceivably arise".
And then over the next page is that letter to the Cheshire County Council, dated a day later on 10 May, to a solicitor who I understand is the legal person there called Mrs Holland:
"I enclose a copy of a letter that I have sent to the solicitors representing Sally Clark. It is self explanatory. I do not know whether you would wish to take the matter further. I have the consultants name and should you wish to take the matter further would need to speak to the police. I can confirm that he has no knowledge of the case other than from watching the television programme".
Detective Inspector Gardner was then asked by the CPS to meet Professor Southall to obtain his views and to ascertain what assistance Professor Southall was prepared to give. You will hear from Detective inspector Gardner that he met Professor Southall on 2 June and that he produced a report of that conversation, and the conversation to help you put it in context covers the matters in Heads of Charge 4 and 5.
Sir, that report of the Detective Inspector is at Page 18 and 19 of your bundle and there are various redactions in there which have been made when this document was supplied to those instructing me by the Cheshire Police. The witness was asked to bring the original today, without the redactions, and he has brought the original and that has been copied. I would ask if you can insert the new Pages 18 and 19, rather than old Pages 18 and 19, in your C1 bundles to the extent that that is easy.
(Copies of the documents were distributed)
Detective Inspector Gardner's report to the CPS was as follows. He gives the name of Dr Southall and his date of birth and states:
"Following the broadcast of a Dispatches television programme, which dealt with aspects of the trial and conviction of Sally Clark. The above named contacted amongst others the North Staffordshire Police Child Protection Team. Southall stated to PC Steve Gibson that having watched the programme he had formed the opinion that Stephen Clark had attempted to smother baby Christopher. He believed that this act had occurred whilst alone with the baby in a hotel room in London and by expressing this view he had some concerns over the involvement of Stephen in the subsequent deaths of his two sons.
It is apparent that Southall has made similar contact with the Crown Prosecution Service, and I am aware that Mr Bromeley has written to both the defence and Social Service solicitors giving details of the content of the call without naming the source. In my role as investigating officer I was then asked by Mr Bromeley to speak with Dr Southall to obtain further views and to ascertain what assistance he was prepared to give and to whom.
On Friday, 2 June 2000, I saw Dr Southall at premises in Leek. He is presently suspended from his position as Consultant Paediatrician and Professor of Paediatrics with the North Staffordshire Health Trust. He states that is a mutual act whilst enquiries are undertaken by the Trust. He feels that he is a victim of a concerted campaign by those opposed to his views that parents abuse their own children and feels he will be vindicates. He was suspended on the 1st December 1999.
Southall confirmed that he had not had sight of evidential material used in the Clark case nor had he attended the trial. He did however state that he had discussed the trial with a number of like minded experts including Professor Sir Roy Meadow and Professor Mike Green. He informed me that the case had attracted a lot of interest on the Internet, and drew my attention to the following web site www.Msbp.Com, (then into discussion). He stated that he his concerns had been raised about the case of Sally Clark having watched the Dispatches programme, Southall himself having featured in a previously screened programme. He stated his concerns initially were two fold, he thought that Stephen Clark came over as insincere and an attention seeker and more importantly he was alone with Christopher during the nose bleeding incident whilst at the Strand Palace Hotel. Dr Southall appears adamant that had Christopher suffered a nosebleed, then unless there was a rare medical reason such as leukaemia then it was a deliberate act to suffocate and the bleeding would have been at the point of the abusive act. In other words it would not have been resultant from earlier abuse. However Dr Southall was not aware of the full facts and did state that he would need to know exactly how Christopher had suffered, difficulty in breathing, amount of blood, necessity to resuscitate, visual observations and what records were made. The investigation into this incident by the police was inconclusive having to rely on friends of the Clarks to support the nosebleed without positive corroboration from medical, or hotel staff. Dr Southall has provided me with his CV and a copy of his published paper in respect of Covert Video Recordings of Life threatening Child Abuse. He states that his opinion re the nosebleed is reinforced by the findings within the report. He states that he is willing to assist in any way he can and he has no objections for his identity to be disclosed to the defence or to the legal department of the Social Services. His main concern is with the safety of Clark's third child and Stephen's access to that child.
Without discussing the case at length with Southall I did point out that there were similarities in both deaths and the fact that Sally was alone in the family bedroom on both occasions when the babies showed signs of distress. Without the benefit of the full facts Dr Southall put forward his thoughts on how Christopher may have been abused and subsequently killed by Stephen. On the night in question Stephen could have come home prior to attending the works function. He abused the child then left the house locking the front door and leaving Sally alone with the child. Sally being oblivious to what is happening because she is in an alcoholic haze and when she awakens she realises the baby has stopped breathing, panics and calls the emergency services. She cannot admit her drinking when the death is investigated because that would imply she is not a responsible mother. Of course Stephen has stated that he did not return to the house on the evening of 13 December 1996, but went straight to the work's function. This is supported by Sally who says her husband telephoned her at about 5:30 p.m. and told her of his plans. Dr Southall had more difficulty in coming up with a theory for the second death although he commented on Stephen's change of story in relation to what time that he actually got home. In this death he conceded that it could have been either parent.
The above illustrates how a well-meaning but scantly informed person can theorise about what actually happened. Doctor Southall does raise some interesting points but there is in my opinion nothing conclusive. His theory on the nosebleed can and will be countered I am sure by other experts. I doubt whether anyone would testify that nosebleeds in babies are definitely caused by abuse and at the time of abuse without wavering and conceding differing possibilities however small a percentage. One positive point is that he is in no doubt that both deaths are due to physical abuse.”
Sir, that conversation covers heads of charge 41, 4b and 4c. It also covers 5a, 5b, 5c, 5d and 5f, all of which, of course, have been admitted.
As a result of the contents of Detective Inspector Gardner’s report to the CPS, the prosecutor wrote a further letter to Cheshire County Council dealing with the case of child A, which we find at page 20. You will see this is another letter to Cheshire County Council on 6 June:
“Detective Inspector Gardner has spoken to the consultant paediatrician who telephoned North Staffordshire police following the broadcast of the Sally Clark programme on Dispatches. He has no objection to your making contact with him. His details are as follows:
Professor David Southall
Department of Paediatrics
North Staffordshire Hospital
University of Keele
Staffordshire.”
And it gives a telephone number.
“I understand that Professor Southall has no knowledge of the case other than the television programme. He is, however, an expert in child abuse.”
You will note, sir, in passing, that he gives his professional address.
Sir, it was not until Professor Southall had met Detective Inspector Gardner that he finally got round to telling his employers about his by now the involvement in child protection issues relating to child A. After the event I have just described, he telephoned Dr Chipping, the Acting Medical Director, and told her what he had done. Dr Chipping was very concerned at the news and felt that she had to remind him of the terms of his suspension and that he should have contacted her before getting involved and should contact her in the future immediately before taking any further action.
That letter – an important letter, in my submission, is at pages 21 and 22. It is dated 12 June and addressed to Professor Southall from Dr Chipping:
“I write to confirm the main points of our recent telephone discussion.”
And then deals with matters that need not concern this hearing. . Then after the two bullet points, it starts:
“Lastly, you mentioned your actions regarding the child protection case involving Sally Clarke, which had been featured recently on the ‘Dispatches’ television programme.
After watching the programme you had called Staffordshire Police Child Protection Unit advising them of your concerns regarding the case and in particular those specific to the husband of the convicted mother. You had subsequently been contacted by Macclesfield police who had taken a statement from you. You stated that you had made this statement in the public interest, as you believe a miscarriage of justice had taken place. You understood that the appeal hearing in respect of this case was scheduled to take place soon.
I asked as to whether you had advised the police of your current suspension as a result of the allegations which had been made against you, which involved child protection issues. You confirmed that you had made the police aware of your position and the ongoing investigation. I advised you that if you were contacted by the police again regarding this matter that you should ask them to contact myself immediately, as I felt that I needed to make them fully aware of the current position.
Since our telephone conversation I have given this matter some considerable thought. Whilst I acknowledge your rights as a private citizen I remind you of your terms of suspension as set out in my letter dated 3rd December 1999. You have been asked not to become involved in any new child protection work, whilst the preliminary enquiry is in process, as the allegations made against you in relation to child protection issues are of a very serious nature.
By taking this action you have potentially put yourself and the Trust in a very difficult position. I am concerned that you did not consider discussing this issue with me before contacting the Child Protection Unit at Staffordshire Police and that you only thought to inform me of this after the event. I believe that we need to meet with your solicitor Mrs T, in order to clarify the terms of your suspension whilst the preliminary enquiry is being carried out and I will ask Sally Campbell to arrange this on my behalf.
I ask that if prior to our meeting with your solicitor any matters arise involving child protection issues or issues of a sensitive nature then you should discuss these with me immediately before taking any action.”
That letter confirms the head of charge 5e, and you will recall the amendment that I sought to be made to that head of charge. It is quite clear from the terms of that letter that Dr Chipping only knew about his involvement after the involvement with the Staffordshire Police and the meeting with the detective inspector.
So we have now reached July 2000. A number of important developments took place in this month. Stephen Clark heard, through his solicitors, that Professor Southall had expressed a professional opinion to police about his, Stephen Clark’s, role in the death of his two sons and that this professional opinion was based solely on watching a television programme. Stephen Clark was so horrified at this information that he made a formal complaint to the GMC on 12 July 2000. What he has learned about Professor Southall’s subsequent role, I anticipate you will hear, only reinforces him in his decision to have made this complaint.
Again in July, as I said earlier, the Court of Appeal heard the case of Sally Clark’s appeal between 17 and 21 July. However, they were unable to make a decision at that time and did not make one until October.
Child A had been in Stephen Clark’s sole care since Sally Clark’s conviction in November 1999, but this was on the basis of an interim care order held by Cheshire County Council. He thus had parental responsibility for the child. Stephen Clark applied to discharge this care order, but it was considered by all that it was not possible to resolve this issue until the decision of the Appeal Court was made.
So in July one has a situation where the appeal has been heard but the result is not known, nor is it known when the result is going to be, and the issue of child A thus is still in somewhat of a legal limbo.
In this context, a social worker from Cheshire County Council wrote to Professor Southall at his hospital address, i.e. the one that had been supplied by Professor Southall to Detective Inspector Gardner. This letter from the social worker one can see at page 24. As you see, it is a letter from Cheshire County Council addressed to the address that was given in document number 20. It is dated 26 June and it is from a social worker, a Mrs Ash:
“Dear Prof Southall
Re: SALLY AND STEPHEN CLARK AND FAMILY
We have learnt from the Crown Prosecution Service that you made contact with the Police following the T.V. programme ‘Dispatches’ broadcast on 27h April 2000, expressing some concerns in respect of Stephen Clark.
Mr and Mrs Clark's son is currently subject to an Interim Care Order to this Authority and placed at home with his father. You will understand that we have a duty to investigate any such concerns under Section 47 Children Act 1989.”
Pausing there for a moment, I think it is probably right that you should know what section 47 of the Children Act says, and can I ask that you see the document which sets out 47(1), which I would ask to be C3. (Same handed)
Section 47 of the Children Act 1989 is entitled “Local authority’s duty to investigate”, and it says under subsection (1):
“Where a local authority –
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessarily to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”
That is a statutory duty on the local authority if information comes to it relating to the welfare of a child living in their area.
In that context, can I go back to the letter at page 24 and perhaps I will re-read in this context the middle paragraph:
“Mr and Mrs Clark's son is currently subject to an Interim Care Order to this Authority and placed at home with his father. You will understand that we have a duty to investigate any such concerns under Section 47 Children Act 1989.
I am therefore writing to request some written clarification of the nature of your concerns, following which myself and the Guardian-ad-Litem, Guy Mitchell, would like an opportunity of meeting with you to discuss the matter further.
I look forward to hearing from you at the earliest opportunity.”
Sir, this letter, as you can see, was sent to the hospital and Professor Southall was prevented under the terms of his suspension from attending there. This letter eventually came to the attention of Dr Chipping and she forwarded it to Dr Southall under the guise of a concerned letter, you may think, which is the letter at page 23.
This is a letter of 14 July to Professor Southall from Dr Chipping:
“Dear Professor Southall,
Re: SALLY AND STEPHEN CLARK AND FAMILY
I write regarding the enclosed correspondence received in the Department of Paediatrics, North Staffordshire Hospital from Cheshire County Council seeking your views in writing regarding the above family.
You will note that the letter is addressed to you as Professor of Paediatrics at North Staffordshire Hospital. As set out in my letter of 12th June in respect of this matter, if you wish to make written statements or have any involvement in this matter this must be done as a private citizen and not in your capacity as an employee of the Trust.
You are reminded that you are required to make Cheshire County Council fully aware of the current position, that is you are suspended whilst an investigation is conducted into serious albeit unsubstantiated allegations which include child protection issues.
You will note that I have written to Cheshire County Council advising them that you have been asked to make them aware of your position prior to you assisting them with their investigations.”
As a result of that letter being forwarded to Professor Southall he, Professor Southall, agreed to meet the people from the local authority and wrote to them in the terms set out on page 25 of the bundle. There we have this letter entitled “Professor David P Southall” giving his address, which is clearly not the address of the hospital, to Mrs Ash the social worker. The letter is dated 23 July 2000:
“Dear Mrs Ash
Re Sally and Stephen Clark and Family
Thank you very much indeed for your letter and as you know we have since communicated by telephone and I am due to meet with you and the Guardian ad Litem next Tuesday.
I must explain that I am currently suspended from my work at the North Staffordshire Hospital as a result of unsubstantiated allegations about my child protection work. A very detailed investigation of these allegations is currently underway and, of course, you should know that this is the case. Moreover, I have been asked by my hospital not to undertake any work in my capacity as a consultant paediatrician at the hospital. I am therefore only able to give advice on this case in my capacity as an individual albeit one with considerable experience of life-threatening child abuse.
I hope by now that you have received the article I wrote with colleagues which was published in the then medical journal Paediatrics.
I look forward very much indeed to meeting with you next week and hope that you will find my contribution to this very difficult problem of assistance.”
Of course, you may consider whether one is dealing with a professor who sends you an article from Paediatrics or whether one is really dealing with somebody in their capacity as an individual.
The professor therefore met, a few days later, as he told his employers that he was going to, the social worker Mrs Ash and a person called at that time the Guardian ad Litem, a Mr Mitchell. A guardian ad litem, he will tell you, is a person appointed by the Court, the Family Court, to safeguard the child’s interests in those proceedings. He or she is usually a social worker.
Then there was a meeting, which is minuted between 26 and 28 in your bundle, that took place on 25 July.
The reason I am reading all these is so that when we get to the witnesses we can deal with the matter very shortly. If there is any other way we can deal with this I will helpfully read any suggestions.
“On 27 April 2000 there was a Channel Four Despatches programme on the television devoted to the case of Sally Clark, convicted in November 1999 of the double murder of her children, Christopher and Harry. Professor Southall who is a leading authority on the subject of suspicious infant death saw the programme. His suspicions were aroused in particular when the programme dealt with a nose-bleed which Christopher Clark was alleged to have had in the Strand Palace Hotel in Charing cross some nine days before he died. Professor Southall, to whom the Clark case was otherwise professionally unknown, was convinced, on the basis of his research and clinical experience, that the nose-bleed described in the programme had to be the result of an assault – almost certainly an attempted smothering. Furthermore, if the timings suggested by Stephen Clark were accurate, then, in Professor Southall’s view, that attempted smothering must have been committed by Stephen Clark and not Sally. If he was correct, this meant that the wrong person was serving a life sentence and child A was unprotected.
Shortly after the programme Professor Southall contacted his local Police Child Protection Unit in Stoke to inform officers there of his suspicions. The nature of Professor Southall’s allegations was in due course made known to the Chester branch of the Crown Prosecution Service. On 9 May 2000 the CPS informed Claire Holland, Principal Solicitor, Cheshire County Council, that an unnamed Consultant Paediatrician had responded to the Despatches programme. But it was not until after the middle of June that the Local Authority had Professor Southall’s name.
In the precincts of the High Court at Chester, on the occasion of a directions hearing, Local Authority and Guardian ad litem agreed that Professor Southall’s intervention amounted to a S47 allegation that had to be taken seriously. In order to sage time, it was agreed that Mrs Ash would write to Professor Southall to ask him (a) if he would be willing to put his concerns in writing and (b) if he would be willing to meet with her and the Guardian. Mrs Ash wrote to Professor Southall at North Staffordshire Hospital that same day. There followed some delay arising from Professor Southall’s difficult position at the hospital. The Local and the Guardian made further approaches, and Professor Southall telephoned Mrs Ash in person on 20 July. As a result of that telephone call a meeting took place at Wilmslow Social Services on 25 July. By way of preparation for the meeting Professor Southall sent us a copy of a paper published in Paediatrics on 5 November 1997, on the subject of Covert Video Recordings of Life-threatening Child Abuse: Lessons for Child Protection.”
He had given a copy of it to Inspector Gardner. Now he is giving a copy of it to the Social Worker and the Guardian.
2. Subjects discussed
Nosebleeds: Professor Southall explained his point of view on nose-bleeds in infancy. He argued, on the basis of his research and clinical experience in this field over many years that a bilateral nose-bleed in an infant in the absence of an identifiable disease or accident, was virtually always the consequence of life-threatening child abuse, usually an attempted smothering. Furthermore, while it might be theoretically possible for there to be delay between the smothering and the actual nose-bleed, he had never known this to happen. In all the cases of which he had experience (either research or clinical) the bleeding had happened immediately – that is to say at the time of the assault.
Stephen’s Role: It was understood by all three of us that Professor Southall’s knowledge of this case was derived almost exclusively from the Despatches programme. He depended entirely therefore upon what was said about the nose-bleed at the Stand Palace Hotel. But if the events took place as suggested in the programme – if, that is, Stephen had been alone with Christopher in the hotel bedroom when the nose-bleed occurred, if the bleeding was extensive and especially if it was bilateral, these facts pointed strongly towards the idea that Stephen himself had attempted to smother Christopher.
Mrs Ash and I are sceptical about the Stephen theory. After all, to the best of our knowledge he was not even in the house at the time of Christopher’s death. But there was another possibility – if that nose-bleed had been an attempted smothering, and if it had been Sally who was responsible, was it possible that Stephen had massaged the timings to protect Sally. If so, what did this say about what Stephen knew and about his capacity to protect child A?
Either way, these were serious matters.
3. Conclusions Reached
Mrs Ash and I agreed that these allegations could not be ignored. Whether Professor Southall was right or wrong, there was only one course of action available to the Local Authority and that was to convene a Strategy Discussion with the Police so as to think through what (if anything) was to be done. Mrs Ash agreed to try and set up a Strategy Discussion for the coming Friday. Minimally, a Strategy Discussion involves Social Services and the police. In this case it was agreed that I should be allowed to attend as Child A’s Guardian and Patrick Wheeler as A’s Solicitor. Obviously Professor Southall needed to be there. It was further agreed that Mr Wheeler and I would invite Professor David…”
Who was retained at that time as what is known as a single, joint expert in the care proceedings, i.e. he is the one expert who is instructed by all the parties in the case.
“along specifically to help the meeting clarify any medico-scientific matters raised by Professor Southall. Mrs Ash and I agreed one more thing relating to the proposed Strategy Discussion. We did not feel we could at this stage take Stephen or Sally into our confidence as to the detail of the Strategy Discussion. Nor could the Local Authority invite them or their representatives to the meeting. This was a difficult decision but the reasoning was simple. Here was a very serious allegation raised by a Consultant Paediatrician with extensive experience in the field of life-threatening child abuse in infancy. Amongst other things the strategy discussion would (specifically have to address two questions – how open it was possible for the agencies to be at this particular time, and was there a need for further criminal inquiries in general, and for further police interviews with Stephen in particular?
Professor Southall’s intervention of course raised two other questions. Was it safe to leave Child A with Stephen? And would it still be possible to bring the care proceedings to an end on 1 August if the Court of Appeal upheld Sally’s convictions? As to the first, Mrs Ash and I both agreed that Stephen’s care of Child A had been to date excellent and that Child A was thriving with his dad. Notwithstanding Professor Southall’s caution about the sheer irrationality of parents who attack their infants, Mrs Ash and I took the view that it would not be in A’s interests to disrupt his life at home at least until the Strategy Meeting. As to the second, Mrs Ash and I also agreed that it would not be possible to conclude the proceedings on 1 August. The Court would certainly wish to hear from Professor Southall. I therefore proposed that on 1 August one or other of us should ask the Court to direct that:-
1. There should be disclosed to Professor Southall such of the papers (civil and criminal) as relate specifically to the question of the alleged nose-bleed in the Strand Palace Hotel;
2. Professor Southall be directed to file a report – specifically about the nose-bleed within fourteen days of receiving those papers;
3. That report be passed immediately to Professor David for his comments.
This, of course, would mean that there would have to be at least one more Interim Care Order, although this was likely to happen anyway, since the Court of Appeal had not given its judgment yet.”
This was a document prepared by the Guardian ad litem on the date there given. I trust the hearing will permit me to give some evidence or some legal comment at the moment about this. In care cases all the papers are confidential to the care proceedings. If you want anybody to see them, for instance a Professor or medical expert, application has to be made to the Court first before those care papers can go outside the care community, if I can put it that way, hence the need, if Professor Southall was to see any of the papers, the Court would have to be asked before permitting that. I trust I am entitled to give that explanation. I am grateful to see my learned friend nodding.
Sir, that was a meeting between the Social Worker and the Guardian and the Professor on 25 July. As a result of this, the proposed strategy meeting was held a few days later on 28 July. That meeting was in two parts. The first part of the meeting was attended by Professor Southall with various participants of the meeting asking various questions about his theory. That is the part that goes between pages 29 and 32. Then there is a second part of the meeting in the absence of Professor Southall where those left at the meeting decided what to do on the basis of what he had told them. This is a strategy meeting held in relation to Child A on 28 July. If I can assist you to the extent I can with those present, and I cannot entirely, John Gardiner, who was the police officer. Mark Sharples I cannot assist the Committee with. Professor David was the expert instructed by all parties in the care proceedings. John Linney would be a Senior Social Worker who chaired the matter on behalf of the Local Authority. Jan Ash was the Social Worker involved in the case. Patrick Wheeler was the Guardian’s solicitor and you will be hearing from him in due course. Guy Mitchell was the Guardian and you will be hearing from him in due course. Professor Southall is Professor Southall. Claire Holland is a solicitor employed by Cheshire County Council.
“The meeting commenced with the Chairman sketching out the approach he proposed to take. It was clearly a little unusual strategy meeting given that both the Guardian ad Litem and the Solicitor for the child were present but given that proceedings were ongoing in relation to the child it was felt appropriate that they be there. JL outlined the fact that there were two issues before the meeting (a) new information from Professor Southall and (b) Social Services Department making a decision with regards to the way forward in relation to the proceedings in court next week. John Linney highlighted the fact that we were all awaiting the outcome of Sally Clark’s appeal, at present we were unclear when judgment would be given. That outcome clearly has direct implications in terms of the care proceedings for Child A.
In terms of roles JL indicated that Guy Mitchell was there as A’s guardian ad Litem and had no direct role in the decision making process, but he was invited to observe the discussions and feel free to ask questions.
Professor Southall was present because following the Dispatches programme in April he had expressed some concerns about material in that programme and subsequently Jan Ash the Social Worker and Guy Mitchell had met him.
JL indicated that the first part of the meeting would look at Professor Southall’s concerns and clarifying the issues that arose and the opportunity could be used to be clear about what exactly Professor Southall was saying and how this impacted on A. Then Professor Southall would leave, given that he was not party to either the Criminal or Care Proceedings and those remaining would subsequently discuss the way forward.
Concerns of Professor Southall
Professor Southall outlined his involvement in that he knew a little about the case as he had been observing the issues that were arising on the website devoted to alleged child abuse and he had been watching the debate as that unfolded on the website of the Royal College also. He was also aware of a lot of hype about the programme and therefore watched it. As he watched it Professor Southall realised that much of it was focused on Mr Clark and in particular in relation to the nose-bleed event at the hotel in London. Professor Southall had many concerns about Mr Clark’s involvement. Professor Southall indicated that what he had heard on the television programme suggested that the nose-bleed did in fact take place as this was corroborated by a friend and given his work Professor Southall was aware that bleeding from the nose or mouth or both is a feature in a proportion of cases of suffocation. It is not a feature that arises naturally. Professor Southall went on to say he was aware that the baby subsequently died and that as a result of criminal proceedings it was not a natural death. Professor Southall indicated that his knowledge of bleeding from the nose and mouth in such a way is that it occurs contemporaneously with an assault as when the baby is being suffocated. Professor Southall also indicated that suffocation events such as these can take a few minutes and in his experience bleeding occurs at the time of suffocation.
Therefore if one took that event alone Professor Southall’s view is that you are looking at the scenario, assuming the truth of the corroboration of the friend, that this baby was suffocated by his father whilst mother and friend were out shopping. He was not aware of any other course of bleeding such as this unless a child suffers from a serious disorder such as leukaemia or a blood clotting disorder. He understood there was quite a lot of bleeding and he would put that as intentional suffocation. Professor Southall expressed the view that he would assume that this had been covered at the trial and he felt that it was an important issue. In the light of his concerns he explained that he had contacted the Police Child Protection Unit local to him as he was concerned for the safety of the child if he was being looked after by his father. Professor Southall said that he felt that an investigation needed to be done. He was aware from the television programme that at the time of the first death father was apparently not on the scene, but was in relation to the second day. Explaining that his understanding was that both parents were present but that the father was downstairs at some point and it was whilst he was aware that mother noticed there was something wrong with the child. Professor Southall highlighted the fact that in his experience the process of a baby dying can take a long time and it is not immediate. You can see a gasping breathing fro five or more minutes after suffocation. He indicated that he wanted to bring the attention to the Police the fact that the child could well have already been dead before the father went downstairs.
Professor Southall indicated that he accepted he did not know enough about all the facts that had been dealt with at trial or any of the medical evidence but that he was seriously concerned that if the father had suffocated Christopher at the hotel it was unlikely that he was not responsible for the two deaths.
Mark Sharples asked Professor Southall whether spontaneous bleeding was rare in babies to which Professor Southall confirmed that was the case. Mark Sharples asked if there had been some sort of incident prior to mother going out, would that have given a stronger likelihood of a nose bleed in the child, for instance a weakening of the tissues etc. Professor Southall indicated that this did have some merit as a theory but it did not fit the case as he had seen in relation to children and that the bleeding in this case had been spontaneous after the event. However Professor Southall did indicate that it was theoretically possible that an incident in the days leading up to the event in the hotel could have caused a weakening of the tissues which may have caused the later bleeding but he was not aware of any cases and therefore thought it was unlikely. Mark Sharples asked that if a child was suffocated and bleeding occurred where was the bleeding from, was it the lungs or the nose and mouth? Professor Southall also indicated that the experts did not know it was difficult to investigate and the experts are unaware whether it was a local trauma or intraviola lung haemorrhaging. It could be either or both.”
Jan Ash asked for some clarification in that Professor Southall had indicated that bleeding from the nose and mouth was a feature in a proportion of cases, if Christopher had bleeding in an attempted suffocation was it not more likely that in a full suffocation (i.e. one that was successful) it was more likely that there would be bleeding. Professor Southall indicated that he did not know, there were various types of suffocation either hand over the nose and mouth which could be counted as a hard suffocation or in other cases pillow or blankets are used which are obviously softer. The research has not been done as to whether a different type of suffocation more or less likely to cause bleeding.
Professor Southall clarified whether there had been any bleeding at death and it was confirmed that there were certainly no references to any in any of the information all parties had. The frenulum was torn and Professor Southall said he would expect some bleeding then.
The meeting discussed some of the issues around the torn frenulum.”
Pausing there for a moment, the lay members of the Committee may wish to know that a frenulum is folds of mucous under the tongue or between the gums and the upper or lower lips.
“The meeting discussed some of the issues around the torn frenulum and the fact that in Professor Southall’s view it was very unlikely for it to be torn in resuscitation and a hand over the baby’s face is a possible cause of the torn frenulum.
John Linney asked whether it was possible that the incident in the hotel contributed to death given that there was only nine days between the incident and Christopher’s death but Professor Southall felt that it was unlikely as the baby would have had to have been unwell and that did not seem to have been the case here. Professor Southall also highlighted the fact that he felt, given the nosebleed had occurred he found it strange that Stephen Clark had not called 999. Professor Southall indicated that there was some other research on bleeding which had not yet been published and it was American research which maybe helpful to this case.
Guy Mitchell asked Professor David whether he agreed with any other possible causes for bleeding from the nose and mouth other an suffocation. Professor David confirmed that Professor Southall had covered those sorts of cases, i.e. because of a medical condition which there was no evidence that Christopher had. Professor Southall confirmed that if there was such a condition he would expect his bleeding from other sites from that suggestion.
Patrick Wheeler indicated to Professor Southall that he couldn't at this stage give him access to any papers and clearly we would need court approval for that but it may be possible for us to give access to certain papers once we've cleared the matter with the court. Professor Southall indicated that he is prepared to give his view once he had full facts and he could do that immediately. He clarified that he would be happy with the information about the nosebleed.
There was some discussion about whether Christopher himself could have caused the bleeding to himself by accident injury and Professor Southall indicated that it was very unlikely in a child of this age. Patrick Wheeler asked whether IPH had been considered ...",
and pausing there a moment IPH is Idiopathic Pulmonary Haemosiderosis about which we will hear more in due course:
"Professor Southall felt that he needed more evidence and would need to see the post mortem findings.
Once everybody had confirmed they had asked all the questions they had of Professor Southall, Professor Southall left the meeting".
Then there was a second part of the meeting after his departure:
"Those present discussed the implications of the information he had provided. There was much discussion about the facts of the case, what had emerged at trial and what investigations had been carried out by Professor David in respect of the nosebleed incident.
There was general consensus that the question marks over the nosebleed incident at the hotel in London had been investigated at length during the trial, however there was no definitive agreement as to what had actually occurred.
It was made clear that so far as Social Services were concerned, this information from Professor Southall had to be pursued in accordance with Social Services Child Protection duties and there was concurrence with this view from the Guardian ad Litem and the solicitor for the child.
It was, therefore, agreed that when the matter was next before the Court on Tuesday 1st August, there will be an application by Patrick Wheeler as solicitor for the child for leave to disclose relevant papers relating to the nosebleed incident to Professor Southall on a joint instruction basis. This application will be supported by the Local Authority. Given that Professor Southall had indicated he turn around a report fairly quickly, it was hoped that the information arising out of this inquiry would be available to all parties in the care proceedings fairly quickly, so that hopefully, matters would not be delayed too much.
Clearly, the outcome of Sally Clark's appeal was not yet known and at this stage none of the parties present knew when the judgment was likely to be given, although there was some indication that if judgment was not given by the end of July, it would not be until the autumn when the legal term recommenced.
There was then discussion as to whether, in the light of Southall's information, there were issues as to Child A's current placement with his father.
It was the consensus of the group that given there had been a decision to investigate the matter further by seeking leave of the Court to disclose papers to Professor Southall, and given that Professor Southall had not, as yet, seen all the information and is not in receipt of the full facts, it was not appropriate to seek to remove A at this stage. The parties felt that they were aware of the real situation and that Professor Southall could only, in reality, be talking hypothetically, based on his viewing of the television programme and therefore it was appropriate that investigation was carried out in the light of Professor Southall's comments, given Social Services child protection duties, but it was not enough at this stage to justify removal of A from his placement with his father which had been going very well.
It is, therefore, agreed that irrespective of whether a judgment had been given from the Court of Appeal in respect of the criminal convictions, the Local Authority and the Guardian ad Litem would be seeking an adjournment of the care proceedings on 1 August to pursue the lines of enquiries with Professor Southall that are outlined. In addition, Professor David would then need to consider the written report of Professor Southall once it was available.
In summary, John Linney concluded by saying that the information that had been received by Professor Southall was not particularly new information, but it had been presented in such a way which as highlighted by Professor Southall has implications as to Mr Clark's suitability as a future carer of A. It was therefore necessary for the Local Authority to review their plans, however, in the meantime there was nothing that suggested that the short term risks to A were of such an order that Social Services should consider A's removal pending the outcome of these investigations.
The meeting concluded with an agreement that Jan Ash, the social worker, would immediately arrange to see Mr Clark on the afternoon of 28 July, to explain the outcome of the meeting with Professor Southall and the way the Local Authority and the Guardian ad Litem intending presenting the matter to the Court on 1 August. It was also agreed that attempts would be made to get Minutes of this meeting prepared so that all parties could have sight of it".
Sir, in the event the Court declined to give Professor Southall access to the care papers relating to the nosebleed. What the Court ordered we can see if we jump to Page 99 in your bundle. This is the Order made in August 2000, sir, and we can see it is an Order of Mr Justice Connell in the care proceedings. Paragraph 1 ordered that the child should remain in the interim care of the Local Authority and then if we can pick it up at "3", sir:
"There be leave for Professor T J David to prepare an addendum report on the issues arising from Professor Southall contained in the Minutes of the Strategy Meeting of 28 July 2000. Such Report be prepared on a letter of joint/approved instruction via the Child's Solicitor".
And then you may have to have a pencil while I help you with the top line of the next page which has had inevitable (Inaudible):
"Leave to Professor David to meet with Professor Southall on the basis that ..."
That is the best I can do and I understand, with my learned friend when we discussed this matter, that he broadly agreed that that was the probable wording and I am grateful to see him nodding:
"Leave to Professor David to meet with Professor Southall on the basis that Professor Southall sets out in writing in advance of any such meeting the points of concern he has as a result of his interest in the case. Such meeting to be chaired by the child's solicitor, the points of concern to form the agenda and the minutes of the meeting to be filed and served. Leave to Professor David to discuss such issues with Professor Southall as he feels necessary arising out of the case".
Accordingly the child's solicitor, from whom you will hear, Mr Wheeler, wrote to Professor Southall on 15 August at Page 35. This is a letter from Patrick Wheeler, from those solicitors there mentioned, and I will pick it up at the second paragraph:
"Following representations made to the Court it has been agreed that Professor David will meet with yourself to enable Professor David to provide an Addendum Report.
This is on the basis that in advance of any such meeting you outline in writing the points of concern that you have as a result of your interest in the case.
To that end I would be most grateful if you could respond in writing to me setting out the points of concern...",
and then he will form an agenda and chair a meeting, etc.
Then the terms of the meeting, then turning to Page 36, were then slightly altered at Professor David's request. He did not want there to be any other person around when he interviewed Professor Southall and that was broadly agreed by the parties.
Meanwhile, events had taken place back at the hospital in relation to their enquiries into Professor Southall's child protection and research work, sir, and this is a letter of 17 August written by Dr Chipping and this is from Page 37 to Page 41. And you will see that a meeting took place on 31 July, Page 37, and that the agenda was to update on progress to discuss from an approach from Keele and to review the communication processes. An update was given at the bottom of Page 37 and discussion took place, which we can see in the course of Page 38, where more information was required by both inquiry teams and that there would be it would take longer.
And can I pick the letter, unless there are any matters that my learned friend wants me to deal with before, at Page 39 under "To Review Communication Process":
"Category II Work
I reiterated that the Trust needs to be made aware of any child protection cases before you become involved e.g. Clarke family. I explained that the Trust had received approaches from Social Services and Penny M via the Chief Executive prior to us fully understanding what action you had taken. It is absolutely vital that the Trust is made aware of these issues so that an appropriate response can be given. Given the nature of the cases (high profile in some instances) you must work with the Trust to help us manage the situation.
Category II work is not undertaken in your capacity as an employee of the Trust however, the organisations involved perceive the Trust as the contact point because of the employment relationship",
and then it deals with two other matters in the next two paragraphs and then we pick it up in the penultimate paragraph:
"You explained that in respect of the Clarke case you had attended a meeting on Friday, 28 July in Wilmslow, which was attended by the lead clinician, the police and social services. You confirmed that you had talked about bleeding from the nose for approximately 1 hour and then had left. The meeting carried on without you. You were expecting to be informed of what action was being decided on i.e. if the children were to be taken from the father's care. You expected this would provoke a considerable reaction from Mrs M etc.
You agreed to keep me informed in respect of the Clarke case".
Just pausing there a moment, this is again Professor Southall keeping the Trust informed but keeping the Trust informed after the event of what he had done.
Then I need not trouble you with the rest of the letter, sir, save to point out at Page 41 that it was confirmed that the suspension had to remain and that there:
"... currently are 41 outstanding complaints in respect of child health issues, 11 of which are legal. These are taking an enormous amount of time and effort at present to manage".
Professor Southall produced his report on his outlines of concern, as he had been asked to do, on 30 August. That report and the matters that flow from it form the subject matter of Head of Charge 7. The report is at Page 42 to 45 and, sir, just on a personal note, before I read it out I wonder if I can have a short break?
THE CHAIRMAN: Yes. We were getting to the stage, anyway, where I thought it might be appropriate. Why don't we stop now and start again at say between 25 and 20 to 4?
MR TYSON: Yes, thank you.
THE CHAIRMAN: And then we will run through to 5 o'clock.
MR TYSON: And you intend rising at about 5?
THE CHAIRMAN: Yes, I would not want to go beyond that if at all possible.
MR TYSON: I am grateful.
(The Committee adjourned for a short time)
MR TYSON: As I say, Professor Southall wrote the report which we see at page 42 and it is this report and the matters that arise out of it that formed the head of charge 7 in this case. It is a report dated 30 August by Professor David P Southall of the address there given. It is entitled “Medical Report on the Clarke Family for Forshaws Solicitors”:
“On 27th April 2000 I observed a television program in the Dispatches series. I was interested in the case of Sally Clarke and her family since a proportion of my clinical and research work involves the sudden and unexpected deaths of infants.
I noted the following in the program:
• Two successively born infants in the family died suddenly and unexpectedly. The first Christopher died at 11 weeks and the second Harry at 8 weeks of age. I noted that there was a third living infant born following the second death of Harry.
• Ten days before Christopher died, the family visited London and stayed in a hotel. The mother and her friend went shopping leaving Christopher alone with his father in the hotel room. The following is a transcript of a video copy of the program:
Mr Clarke stated: I heard this strange noise behind me and I turned round, mmm and there was blood running out of both of his nostrils, not huge a huge flow but little trickles running out both his nostrils into his mouth but he was obviously choking. He was swallowing it and choking on it and finding it difficult to breathe. I was thrown into a bit of a panic as you can imagine and so I went to the bathroom and got a tissue to try and mop the blood away. He was still struggling to breathe, so then I got a glass of water and poured that over his face to try and clear and that seemed to work although he did swallow it but it really thinned the blood out and he seemed to be able to breathe a little bit better at that point and I rang down to reception and asked if there were any doctors in the hotel. They said no but they’d send up some first aiders.
The reporter stated And when the police investigated, they found no evidence that Steve had summoned medical help from the hotel.
A friend who had been shopping with Sally that day, Liz Cox, gave evidence to back the story up according to the reporter. She stated on film the following: When I got back to the hotel, we went up to the room and Steve told us that Christopher had had a nose bleed while we were out mmm and he had rung for a doctor mmm and the doctor had spoken to him over the phone. I was there. It seemed very genuine. He said while you were out he had a nosebleed and I rang the doctor.
According to the reporter Eventually the Crown accepted there was a nose bleed but claimed it was the result of an earlier smothering attempt by Sally Clarke. The defence expert said the real cause could be a rare fatal lung condition.”
• At the time Christopher was found dead, he was alone with his mother. The father was apparently attending a Christmas party. A neighbour described how he heard a commotion and gave the Clarke’s house keys he had to the ambulance men to allow them to gain access to the house. It appeared that the door was locked and that Sally could not find the key.
• The first death was initially attributed to a lower respiratory tract infection but later there were reported to be a torn frenulum and some possible bruises on his legs at the time of death. There was also reported to be fresh and old blood in Christopher’s lungs. Dr Cowan attributed the torn frenulum to the resuscitation given in the casualty department of Macclesfield Hospital. Christopher was cremated.
• The second death was initially reported to be a consequence of the shaken baby syndrome with evidence of a rib fracture, possible injuries to the brain, spinal cord and eyes. Later there was a dispute about some of these findings. However, it was reported that there were 2 petechial haemorrhages on one of Harry’s eyelids after death.
• When Christopher died, Mr Clarke was called from a party and drown down the motorway to the hospital in Macclesfield (which motorway?). Sally had been alone with the baby at the time he was found dead.
• I noted that Harry was on a breathing monitor at home.
• At the time of Harry’s death, both parents were at home. According to Mr Clarke he had arrived home relatively early to give Harry his bath. Since there was an allegation that before Harry died there had been other injuries to him that evening (he died at around 9pm), Mr Clarke said that he had checked with the office receptionist (presumably at his workplace) that he/she had made a request for the taxi to come early in time for him to arrive home at around 5.30-6pm. Mr Clarke took the extraordinary step of getting this fact confirmed in writing by the receptionist presumably. However, the police checked with the taxi company and found that this version was incorrect and that he had arrived home much later (precise time not given). Mr Clarke was adamant that as a solicitor he would not have lied on oath.
• The reporter claimed that at the time of Harry’s death Mr Clarke was about to go out. This is strange since he had only just got home as confirmed by the taxi company.
• At the time of Harry’s death, Mr Clarke claimed that he had placed Harry in his bouncy chair and gone to make a drink. By the time the kettle had boiled, he heard Sally scream out. He went upstairs as fast as he could because of his crutches and tried to resuscitate the baby.
COMMENTS
Please see attached publication in Pediatrics concerning the work of my Department on the intentional suffocation of infants and young children.”
This is the third time he has given out a copy of this article.
“1 Two sudden unexpected infant deaths in a family are extremely rare but when one is preceded by an apparent life threatening event (ALTE) with nasal or oral bleeding, intentional suffocation becomes the most likely if not an almost certain cause of the deaths.
2 Christopher suffered an ALTE with bleeding from both nostrils ten days before he died. ALTE’s which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research.
Contrary to the claim apparently made by the Crown, the process of intentional suffocation produces immediate bleeding not bleeding that is delayed. Thus, the intentional suffocation must have been undertaken by the adult with Christopher at the time of the ALTE and nose bleed, namely Mr Clarke.
3 The police did not verify Mr Clarke’s statement that he had alerted medical staff in the hotel. In my experience it would be extraordinary for a parent not to call 999 or do everything possible to obtain medical assistance if their first young baby was unable to breathe properly and had sudden bleeding from both nostrils. Extraordinary that is, unless the parent had deliberately caused the bleeding, as must, in my opinion, have been the case here.
4 The statement of Liz Cox backs up the reality of the ALTE and that it could not have been fabricated to help clear Mrs Clarke, since her first baby was still alive.
5 The fresh blood in Christopher’s lungs after death would be typical of intention suffocation. The old blood in his lungs could have been associated with a previous episode of intentional suffocation.
6 There are other causes of bleeding from both nostrils in an infant but they are much rarer than intentional suffocation. Other clinical indicators of a serious illness accompany the vast majority. One could would be a disorder of the clotting of the blood, such as leukaemia. Idiopathic pulmonary haemosiderosis can produce the coughing up of blood but usually this occurs through the mouth or the mouth and nose together. Infants with this latter condition have progressive respiratory failure and evidence of multiple haemorrhages before dying. Bilateral trickling of fresh blood, described by Mr Clarke would not be in accordance with this diagnosis. It is important to note that a doctor did not ever see Christopher prior to his death, which would be incompatible with this latter diagnosis or any other medical causes of nose bleeding except for intentional suffocation.
OTHER ISSUES
1 I note that there were two petechial haemorrhages found on Harry’s eyelid after death. According to the accompanying report in Pediatrics, these are also associated with intentional suffocation.
2 I note the torn frenulum on Christopher. Much of my clinical work involves paediatric intensive care and I regularly intubate and resuscitate infants. Contrary to the view expressed by Dr Cowan, it would be extremely unusual in my experience for the frenulum to be torn as a result of resuscitation. It is most likely to have been the consequence of abuse, including intentional suffocation.
3 I find the story concerning the timing of the taxi on the night of Harry’s death worrying. I was particularly concerned to see that Mr Clarke had acquired a false and apparently signed statement from the office receptionist. How did he persuade him/her to provide this?
4 I also found the description of Harry’s death to contain a number of concerning features. My understanding was that Mr Clarke was on crutches for an injury. If his wife was awake when he went to make a drink, why did he not give the baby other, which might have been easier for him than placing the baby in a bouncy chair? What did Mrs Clarke say about this? Was she awake at the time? There may be satisfactory answers to these questions.
5 From my experience in studying the effects of intentional suffocation, I have observed that the baby struggles violently, although silently, even at this age, before losing consciousness 60-80 seconds later. Death then requires persist suffocation for a further unknown time period. In recordings taken during the sudden deaths of a small number of infants at home, I have noted that the heart usually continues beating for around 15 minutes and maybe longer, with intermittent gasping breaths. The short timing described by Mr Clarke with respect to the kettle boiling could be compatible with Mrs Clarke suffocating the baby but the timing does not easily fit with this, unless the baby was dead prior to him going down stairs, which of course according to Mr Clarke was not the case.
IN CONCLUSION”
- I have read this, but I will read it again –
“I was stunned when watching this television programme since it appeared extremely likely if not certain to me that Mr Clarke must have suffocated Christopher in the hotel room. I felt that the police had been misled into believing that Mrs Clarke could have suffocated Christopher before she left the hotel and that the subsequent bleeding was a delayed consequence of this. My experience with cases of intentional suffocation, where there was nasal or oral bleeding, does not concord with this view of the expert advice given to the police. From my experience the bleeding always occurs simultaneously with the process of intentional suffocation. I was aware of a third child in the family who could be receiving care from Mr Clarke. Consequently, the next morning, I contracted the Child Protection Division of the Staffordshire Police to report my concerns.
I feel that every event subsequent to that in the hotel should be re-examined with this new evidence in mind.
I remain convinced that the third child in this family is unsafe in the care of Mr Clarke.
I suggest that all of the remaining film work undertaken for the ‘Dispatches’ program but not shown be examined.
Tragically a considerable time has now elapsed making the task of the police in re-checking Mr Clarke’s alibi for the first death very difficult.
I declare that the contents of this report are true and that they may be used in a court of law.”
Can I ask you, please, to look at head of charge 7 and to note the admissions? We can see from our reading of that report that head of charge 7a is made up, namely he had no access to any case papers; (ii) is made out because he had not been to see either Stephen or Sally, and 7b:
“Your report concluded that
i. it was extremely likely if not certain that Mr Clark had suffocated Christopher in the hotel room,
ii. you remained convinced the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark,
c Your report implied that Mr Clark was responsible for the deaths of his two eldest children Christopher and Harry.”
Then you can recall the first part that was admitted by Mr Coonan on behalf of his client:
“e Your report declared that its contents were true and may be used in a court of law.”
He also admitted charge 7f:
“Your report contained no caveat to the effect that its
conclusions were based upon very limited information about the case held by you.”
Of course, 7f, sir, is a matter of considerable criticism. Other matters are, as it were, recorded but 7f , we say, is a matter of considerable criticism for the doctor.
Sir, as ever in this case, Professor Southall told the Trust about his actions after the event and did not tell them in advance. If we turn now to the letter from the Trust at page 48, which is a letter to Professor Southall of 14 September. It is important that we look at some dates here. This is dated 14 September to Professor Southall:
“Dear Professor Southall
I write following our telephone conversation held on 4 September when you informed me that you were intending to submit a report to the judge presiding over the child care proceedings in relation to the Sally Clarke case.”
Pausing there for a moment, he says he was intending to submit a report. We have seen that he had drafted the report on 30 August.
“You confirmed that following the case conference you had attended some weeks ago, you had subsequently been asked to provide your written views on the case which were based on bleeding from the nose which occurred in the first baby that had died. You explained that you had asked your solicitors to check the statement they confirmed they were happy with this.
You stated that although the child care proceedings and the criminal proceedings in relation to this matter were separate you believed that the Appeal hearing for Sally Clark was on hold as a result of the judge in the child care case proceedings having asked you to provide a report and also for you to meet with Professor David who is the expert acting on behalf of the Guardian ad Litem.
The date of this meeting had not been confirmed but ultimately the care of the third child from the Clark family would be decided following discussions.
I confirmed that as per our previous discussions and correspondence the Trust as your employers could not condone your actions. You have been asked not to undertake any new child protection work whilst you are suspended. You have been made aware that any action you take with regard to this matter is done as a private citizen and not as an employee of the Trust. You acknowledged this point and agreed to forward the formal correspondence from the solicitors/courts in respect of your involvement explaining the situation.”
This is a letter I now note not written by Dr Chipping but someone on her behalf, who says,
“I will of course advise Dr Chipping of that situation and ask that you keep me advised during Dr Chipping’s period of leave of any progress with this matter given the potential media interest in this high profile case and the subsequent impact for the Trust in terms of media interest and contact from other interested parties.”
Sir, it is now time to bring Professor David into the picture. Professor David is a leading Paediatrician and Professor of Child Health and Paediatrics at the University of Manchester. He has a number of roles in this case. Firstly, he was the expert retained by all the parties in the Child A care proceedings to advise them. He wrote a report to the care court in October 1999 and, due to its contents, he was subpoenaed by the defence to appear as an expert witness for the defence in the Sally Clark criminal trial. As we have seen, he was also asked by the care court to meet Professor Southall and to report on Professor Southall’s concerns. That report is in your bundle of documents and we will come to it in a moment.
In these PCC proceedings Professor David is not only a witness of fact dealing with the exchange of emails set out in head of charge 7(g), but he is also put forward as an expert to assist the Committee on two distinct areas. The first area is an expert Paediatrician with expertise in the area of child protection. The second is as an expert on the appropriate practice and procedure of medico-legal experts, so in effect he is a medico-legal expert expert, if I can put it in that way. The aspect of this case covered by head of charge 7 and head of charge 7 is the most serious head of charge in our submission, can best be dealt with by dealing in some detail with Professor David’s report to the care court which he did or prepared in September 2000.
Sir, that report is from page 50 in your bundle to, I regret to say, page 87. I will do my best to take you through it and, if my learned friend indicates that he would like me to deal with matters either slower or differently, then perhaps he can point it out at the relevant section.
It is in relation to Child A’s care proceedings and it is the third report of TJ David in September 2000. He indicated in paragraph 1 he had been instructed to prepare a report in this case by Patrick Wheeler. He said in paragraph 2 it is the third report he had prepared in this case. The first dated October 1999 covered the major medical issues relating to the deaths of Christopher and Harry Clark. The second dated 9 November was an update on the first report covering some additional issues and the need for further information.
“Following the conviction of Mrs Clark I was asked if I would consider assisting with the appeal and I was asked if I could consider assisting the makers of a television documentary about the case. Accordingly, on 7 January 2000 I wrote to Mr Wheeler informing him of my position and seeking the advice of the Court. I was informed that the Court gave leave for my involvement in both processes.”
Then he says that in the event he was never instructed to assist with the appeal. He was approached by the producer in relation to the television programme and he says at the bottom of the page,
“Despite very considerable pressure, I declined to be interviewed on film.”
Over the page he says,
“The programme was completed and shown on television on 27 April 2000. The programme was seen by Professor David Southall, Professor of Paediatrics and Honorary Consultant Paediatrician at the North Staffordshire Infirmary, Stoke-on-Trent. AS a result of seeing the programme he formed the definite view that Mr Clark had murdered both Christopher and Harry and that, accordingly, not only had the wrong person been convicted but he life of the remaining child, A, was in danger by virtue of the fact that he was being cared for by Mr Clark.
5. After viewing the televisions programme…”
Then the Professor sets out the details I have already set out, that the Child Protection Team was involved thereafter, and Detective Inspector Gardiner. Then there was a Social Services meeting which I have taken you through. Then there was a Strategy Meeting which was attended and we take it up at paragraph 6,
“This in turn led to Social Services convening a formal Child Protection Planning Meeting held on 28 July. I was instructed to attend.”
That was the meeting I read out which was in two parts.
“I received a copy of the notes. At this meeting Professor Southall voiced his concerns in some detail. He then left the meeting and topic was discussed further. Whilst it was clear that the police had no intention of taking the matter any further it was agreed that whatever ones views Professor Southall’s views could not simply be ignored. The Court involved in the care proceedings was informed and as a result:
(i) Professor Southall was asked to set down his views in writing.
(ii) I was asked to investigate the matter.
7. My instructions were that absolutely no information about the case, and no papers connected with the case should be disclosed to Professor Southall, and I provided a written undertaking to this effect.
8. Professor Southall’s report was dated 30 August, and I met with him on 8 September. The purpose of the meeting was for me to obtain a clear picture as to his concerns and to ask for further details about the research evidence that lay behind some of his conclusions.
Meeting with Professor Southall
9. Professor Southall’s concerns, as expressed to me when we met on 8 September can be summarised as follows:
9.1 There is only one possible cause of Christopher Clark’s nosebleed and that is intention suffocation.
9.2 Nose bleeds that result from suffocation happen immediately after the suffocation attempt and are not in any way delayed. It therefore follows that since the only person present when the nose bleed occurred as Mr Clark, Mr Clark must have caused the nose bleed by deliberately suffocating Christopher.
9.3 It was the opinion of Professor Southall on the basis of watching a video recording of the television programme several times, that Mr Clark did not seem genuine and appeared to be acting.
9.4 An additional concern of Professor Southall was that Mr Clark was a liar, as proven by his untruthful account at the time of his return home on the day of Harry’s death.
9.5 An additional concern was that Mr Clark failed to dial 999 when he found that Christopher had a nose bleed and was having difficulty breathing. In Professor Southall’s opinion a normal parent would have panicked and called 999 and Mr Clark’s failure to do this was highly suspicious.
9.6 An additional concern was Mr Clark’s failure to give Harry to his wife, rather than putting the baby in a bouncy chair. The implication would be that Mr Clark, having suffocated and attacked Harry, did not want his wife to see the child had collapsed.
9.7 An additional concern was the finding of two petechiae on Harry’s eyelid, a pointer to him of having been deliberately suffocated.
9.8 An additional pointer to abuse was the finding of a torn frenulum in Christopher which, in Professor Southall’s opinion, could not be explained by attempted resuscitation despite this being viewed as a possibility by Dr Cowan, the Consultant Paediatrician who was present at the attempted resuscitation of Christopher. This torn frenulum as, felt Professor Southall, to be regarded as a further pointer to suffocation.
9.9 Given that Professor Southall is of the opinion that Mr Clark rather than Mrs Clark is the person who killed Christopher and Harry, his view is that the life of the surviving child, A, must be in danger while he continues to be left in the care of Mr Clark.
9.10 Professor Southall is very unhappy about the attitude of the police in that they have apparently both rejected and failed to act on his views.”
I remind the Committee that these points, 1 to 10, are based entirely virtually on watching a television programme, and that he is accusing a man of murdering his two children largely on the basis of watching a television programme.
“Professor Southall’s suspension.
Professor Southall has been suspended from his clinical duties and that suspension includes a ban on having any involvement in child protection cases, whether under his care at the hospital or by virtue of his being involved as an expert in other cases. Thus he has withdrawn from all child protection work and I can verify this for I have been approached by a number of local authorities who have been faced with is withdrawal midway through cases and I am currently assisting the Crown Prosecution Service as a result of his withdrawal from a case.
Professor Southall explained to me that his involvement in the Clark case was not as a Paediatrician or doctor. Indeed, when he attended the planning meeting he made a similar indication and told the meeting that he was not allowed to mention the name of his place of work. He told me his role in the Clark case was purely as a concerned member of the public who, having come to the conclusion that the Court had convicted the wrong person and that a child was in danger as a result of living with the true killer, had a clear duty to report the matter to the appropriate authorities. He had informed his employing authority of his actions and role in the Clark case.”
Of course, he did inform his employing authority, but at each stage after the event.
“Existing Involvement of Meadow and other experts”
I established that Professor Southall was aware at the time of seeing the television programme that Professor Meadow was involved in the case. He was, of course, aware because of their participation in a television programme that Dr Rushton and Dr Berry were also involved. He explained that he was well aware of Professor Meadow’s involvement which had been discussed extensively both on an Internet website for mothers who believed that they had been wrongly accused of fictitious illness abuse and on the Royal College of Paediatrics and Child Health Internet mailing list, which had discussed Professor Meadow’s evidence.
I asked Professor Southall why the name of Meadow, an authority on the subject of suffocation, who had published a paper reporting 80 cases, he nevertheless came forward. In other words, knowing of Professor Meadow’s familiarity with this area, surely he would have carefully considered the topic of suffocation which therefore would have been comprehensively covered. Professor Southall told me that he felt that Professor Meadow had no personal experience of suffocation, whereas Professor Southall had talked to many parents who had described apparent life threatening events to him which were presumed to be the result of suffocation. Professor Southall added that although he accepted that Meadow had a contribution to the subject, he felt that Meadow had considerable less expertise in the area of suffocation, because he had never actually seen any of the cases or met the mothers and was just dealing with second hand reports from other doctors.
In contract, Professor Southall felt that he had made a special study of suffocation and that unlike Professor Meadow he had personally met all the mothers and, as well as interviewing them, had observed them in hospital undergoing covert video surveillance. In short, Professor Southall felt he knew considerably more about suffocation than Professor Meadow and was therefore in a position to make additional observations and come to conclusions over and above any input which could be provided by Meadow.”
Pausing there a moment, you may wish to contrast what Professor Southall is saying in paragraph 13 with documents, say, in paragraph 11, namely that his role in the Clark case is purely as a concerned member of the public and not as a doctor.
“Professor Southall’s data on nose bleeds.
14 We discussed Professor Southall research data on bleeding from the mouth and nose in cases of suffocation, with reference to his very well publicised 1997 paper in the medical journal “Paediatrics on cover video recording.”
Pausing there, that paper is available to the Committee and will be dealt with by Professor David and no doubt Professor Southall in due course. I am not going to burden the Committee with it now, not least because it is so helpfully summarised here.
“The data can be summarised as follows:
14.1 39 children were studied using cover video surveillance.
14.2 In 30 of these 39 cases video recordings documented attempted suffocation of the child.
14.3 In 9 of these 39 cases, video recordings did not document attempted suffocation of the child.
14.4 Of the 30 cases in which suffocation occurred during surveillance there was a history of bleeding from the nose and mouth during a previous apparent life threatening event in 9 cases.
14.5 Of the 9 cases in which suffocation did not occur during surveillance, there was a history of bleeding from the nose and/or mouth during a previous apparent life threatening event in 2 cases.
14.6 Therefore in the 39 cases studied there were 11 in whom there was a history of bleeding from the and/or the mouth during a previous apparent life threatening event.
14.7 The source of the information was the descriptions given of the apparent life threatening event by the parents.
14.8 In no case did Professor Southall or his team see bleeding from the nose or mouth during cover video surveillance. His explanation for this is that carers were not allowed to suffocate a child for long as staff always intervened after a few seconds.
14.9 In all 11 cases, as far as Professor Southall could remember, the bleeding from the nose and mouth had occurred, i.e. been noticed at the time of the child’s collapse rather than starting minutes or hours later.
14.10 In 4 cases bleeding was from the nose, in 3 it was from the mouth, and in 4 it was both from the nose and the mouth (the data for this are given in table 3 of Southall’s paper).
14.11. Professor Southall was unable to state whether in each case the bleeding had been from the left nostril, the right nostril, or both nostrils. This data had not been collected, though Professor Southall said that were future data to be collected this would be a point that he would wish to cover.
14.12 Regarding the origin of blood from the nose, Professor Southall's view was that this was either as a result of direct trauma to the nose (his preferred explanation) or as a result of blood coming up from the lungs, i.e. pulmonary haemorrhage, which he knew was Professor Green's explanation for some such cases. [This is the same Professor Green as has been involved in the Clark case].
Timing of nose bleeds due to trauma
15. The central prop of Professor Southall's assertion is that nose bleeds occur immediately after trauma, and that it therefore follows that since Mr Clark was alone with Christopher, and since in Professor Southall's view the only cause of a nose bleed at this age (in the absence of some pre existing disease such as leukaemia) is inflicted trauma, Christopher's nose bleed must have been caused by his father suffocating him. This logic was extended to the conclusion that Mr Clark was therefore the person who killed both children.
This flow of thought includes a number of concepts which require examination, but the first is the issue of the timing of nose bleeds that result from trauma".
And then he deals with the issue of timing and what the various experts said at the trial about the issue of the timing of nosebleeds that result from trauma. And if required we can go through but I am not going to read 58, 59 and 60, but I will pick it up at Paragraph 25 and you will see why I have not included the other matters:
"Professor Southall is insistent that nose bleeds resulting from suffocation are always immediate, and never delayed. My opinion is the same as his, though I place a very lower value on his data than he does. In not one case of suffocation has he personally seen nose bleeds. His data solely comprise four cases of bleeding from the nose and four with bleeding from both the nose and mouth. His information relies entirely on information provided by those who suffocated the child. This is not as bad as it sounds, in that it is unlikely they made up accounts of blood staining around the nose at the time of their child's collapse. Nevertheless it is second hand information, and it was collected by serendipity. He has no information at all as to whether the blood came from the left nostril, the right nostril or both. He rates his data as being more reliable than that of Professor Meadow, but the truth is that both sets of data are problematic.
26. The Stoke on Trent suffocation cases' medical records that I have seen tend to contain rather low quality history taking, and in my view Professor Southall has rather over valued the quality of his own data. He was not collecting information about nose bleeds or their timing prospectively or systematically, and in my view his methodology would have not necessarily detected nose bleeds being delayed by a few minutes or more after trauma. Professor Meadow's data is even less satisfactory by being both retrospective and second hand, and it is further undermined by the failure to disclose the actual data despite repeated requests, causing more than one observer to even question the degree to which the data exists.
27. The real value of Professor Southall's data is in demonstrating the association of blood coming from the nose or mouth in association with apparent life threatening events in infants in whom covert surveillance subsequently demonstrated deliberate suffocation. Although there is other data linking blood from the nose or mouth and deliberate suffocation, in my opinion Southall's data is the most useful. However he has no actual data on timing.
Conclusions
28. I have seen a large number of nose bleeds resulting from trauma, either external to the nose or as a result of nose picking, and I cannot recall ever seeing one in which there was a delay between the trauma and the appearance of the blood.
29. There is of course no way that one could declare the delayed appearance of blood as being impossible, but I have to say that I think this concept is very far fetched. I appreciate that these views are not necessarily the same as Professor Meadow, Dr Rushton or Professor Berry, for they appear to attach greater credibility to the 'delayed bleeding' theory than I. Nevertheless it seems fairly clear that they all think that an immediate bleed is far more likely than a delayed one.
30. In short, I agree with Professor Southall that nose bleeding resulting from attempted suffocation is likely to be immediate. That was my view at the time of preparing my first report. The views of Professor Meadow, Dr Rushton and Professor Berry are plainly very similar, and I have also spoken to Professor Berry on the telephone recently, and he too agrees that bleeding from trauma due to deliberate suffocation is likely to be immediate. In short, Professor Southall has added no new information at all. The 1997 paper to which he has referred was available at the time the original reports were written, and was familiar to everyone working in the field".
And then he deals with the cause of the nosebleed:
"At the time of my first report, it seemed to me that there were a number of possible explanations for Christopher's nose bleed, and the possibility that it was the result of Mr Clark suffocating Christopher, which I considered carefully, was the very first on my list. I wrote:
32. 'The following are the possible explanations of this episode:
32.1 that the clinical features (i.e. the nose bleeding and breathing difficulty) were the result of Mr Clark deliberately suffocating the baby, either to silence the child's continual crying or in a failed attempt to kill the child.
32.2 that Mrs Clark deliberately suffocated the child before leaving for the shops, with the nose bleed only becoming apparent some while after she had departed.
32.3 that the blood came from the nose, possibly resulting from trauma from the baby's finger(s), resulting in blood being inhaled into the lungs.
32.4 that the child experienced a pulmonary haemorrhage (i.e. the bleeding originated in the lungs) with blood coming out of the nostrils simulating a nose bleed’".
And then the report, sir, goes on to examine each of those four possibilities and, as relating to Possibility 1 at Paragraph 33, Professor David says:
"... the first explanation was and is no more than a theoretical possibility. I can find not the slightest evidence to support this suggestion, which runs entirely in the face of an array of information about Mr Clark. For example, it was always Mr Clark who was the more keen to start a family and to have children, and it was not Mr Clark who had the alcohol problem. It does not fit with the fact that he was not present in the household when the child died. The only 'new' aspect is that it turns out that Mr Clark's evidence about the time he got a taxi home on the day of Harry's death was incorrect. The main possibilities here are:
33.1 genuine mistake
33.2 lying to protect his wife ...
33.3 entire accounts of both Mr and Mrs Clark fabricated to cover active collusion...",
and then he deals with that in Paragraph 34.
Then he discusses in Paragraph 35 onwards the second of the two possibilities, that Mrs Clark suffocated the child before leaving for the shops, and he goes on the Professor at the top of Page 65 to determine that that was implausible and deals with why it is implausible.
Then at Page 66 at 39 the Professor deals with the third of the possibilities, in that it was a spontaneous nose bleed, and he says:
"In my first report, I expressed the opinion that the third explanation, namely that Christopher had a severe spontaneous nose bleed, is a possibility. I remain of this view, although as before I feel it would be a remarkable and most unusual occurrence",
and then he goes on to give the reasons why he says that and goes on at some length to the give the reasons why.
Then he comes to the fourth of the possibilities at Page 69, which is nose bleed due to pulmonary haemorrhage:
"The fourth explanation, namely that Christopher experienced a spontaneous pulmonary haemorrhage resulting from the condition of idiopathic pulmonary haemosiderosis, seemed to me when I wrote my first report to be the most likely explanation",
and he deals and sets out why.
And then honestly he says at Paragraph 47:
"It has to be said that all the other experts disagree that idiopathic pulmonary haemosiderosis is a possibility",
and he goes on to say why the experts said that.
Then from Page 71 onwards, Paragraph 48 onwards, he deals with the learning and particularly the learning provided by a distinguished Professor from America about idiopathic pulmonary haemosiderosis, or IPH, in early infancy, and the views of Professor David and the learned Professor from America on IPH in infants are there set out.
He then says at the bottom of Paragraph 52 at Page 72, the last three lines:
"My view remains as it was, that idiopathic pulmonary haemosiderosis is a possible explanation of Christopher Clark's death".
Then over the page he puts counter views to his own views, and so by Paragraph 55 Professor David has discussed all four live views at the criminal trial thereafter as to the cause of the nose bleed at the hotel.
He then goes on to indicate that Mr Clark had provided he, Professor David, with a number of materials, and at Paragraph 56 about three lines down he says:
"In one of these bundles of miscellaneous items ... was included the comments of a general practitioner, to the effect that nose bleeds in small children are not infrequent. Mr Clark also referred me to the comments of a health visitor, who in turn referred to a medical textbook which described nose bleeds as being common in infants".
And Mr Clark was of the view that perhaps those closer to the ground to dealing with infants than high flown Professors might know more about nose bleeds than high flown Professors, and at Paragraph 57 on Page 75 Professor David said:
"My response to this is to acknowledge that the point made by Mr Clark is entirely valid. Hospital specialists undoubtedly shielded from the large majority of apparently minor symptoms. To explore this point, I contacted a number of general practitioners to seek their views as to the frequency of nose bleeds in young infants.
58. The responses to date suggest that in primary care nose bleeds are seen only rarely in young infants".
Then Professor David reports to the Court on how the child, A, was living and getting on with his father and reports positively to the Court on that relationship.
Then in Paragraph 61 he sets out how a paediatrician would evaluate a case of suspected abuse, sir, and this in our submission is important bearing in mind the strong and trenchant views that Professor Southall came to largely on the basis of watching a television programme. Professor David states that:
"Multiple sources of direct information are available:
• interviewing the parents and other carers
• interviewing the child (if old enough)
• examining the child
• studying laboratory reports: biochemistry, haematology, bacteriology, virology, histopathology
• studying x ray films, isotope scans, CT scans, MRI scans and ultrasound scans
• studying the hospital, community and general practitioner medical records
• studying reports from social workers and case conference minutes
• studying records of police or other interviews
• studying medical reports on the child, including post mortem reports
• studying medical and psychiatric reports on the parents and/or carers
• studying the medical records of the parents and/or carers
• studying photographs of the child, and maybe video recordings ...
• studying transcripts of previous Court cases ...
• studying witness statements made by relatives, friends, onlookers, ambulance crew, hospital medical or nursing staff ...
• meeting with, and interviewing, doctors and nurses, including those involved in the care of the child and experts brought in to study specific aspects of the case".
And then the Professor importantly goes on, sir, and I will have to read this piece to you because it goes to the issue here in this case of Head of Charge 8; namely, the consequences of the doctor doing what he did the consequences that the Complainants say of the doctor doing what he did and it is this:
"Doctors are physicians and not magicians. We do not possess second sight. There are no short cuts in this laborious process. My own first report in this quite exceptionally complex (probably unique) case, involving the deaths of two infants, ran to 354 pages. The report made reference to 569 scientific and medical articles. The list of documents initially provided to me covered no less than 12 pages. The work entailed 5 meetings with lawyers, 5 interviews with the parents, seeing and examining A, no less than 16 separate meetings with various health professionals involved, attending a very lengthy experts meeting, interviewing the foster mother, and extensive searches of the relevant medical literature. Subsequent work on the case has included examining an enormous quantity of additional material, including transcripts of evidence given at the trial and meeting with further medical colleagues including travelling to meet two, an ophthalmologist and a pathologist, in North America.
63. There is nothing worse than giving an opinion on a case only to find later that some important fact that was unknown or unavailable at the time the report was written wholly undermines one's conclusions. One's time and energy have been wasted, and one is made to look a fool. There can be few who have not had an experience of this sort; sometimes it is through no fault of one's own, but because of data that was unavailable at the time but emerges later. Painful experiences of this sort teach us all to be increasingly cautious, and to ensure that one has seen every scrap of paperwork and other material before delivering an opinion. Nowhere could this apply more than in a child protection case where there is such a huge burden of responsibility on one's comments and conclusions. Far more important than the risk of personal embarrassment is the fact that a child's whole life and future may be at risk, whether from continuing to be exposed to the risks of abuse or being removed from home because of mistaken information. Experience of child protection work is that time and time again one is told that one does not see this or that bundle of paperwork, only to find lurking in the supposedly irrelevant documents some crucial information, the importance of which was not appreciated by others, information that has some important bearing on conclusions. Any prudent paediatrician makes it their practice to refuse to express any opinion in a child protection case until the entire paperwork has been disclosed. There may be occasions when one is forced to give advice before all the available information is available, in which case one has a professional duty to point out the very preliminary or tentative nature of one's conclusions. Where one has not met the family and one has not had the opportunity to interview those who have had care of the child, there is a special need for caution when coming to any conclusions.”
Then paragraph 64, which goes straight to the heart of head of charge 8:
“What stands out as quite exceptional, indeed in my experience quite unique, in the context of this particular case, therefore, is that without recourse to any of the paperwork or medical or other information available in this case, indeed without access to one single item of the sources listed in above in paragraph 61, Professor Southall formed a very definite view that Jack Clark's life is in danger because he is living with his father, the killer of his two brothers. Maybe the most striking feature of Professor Southall's contribution to the Planning Meeting and in his written report is that there is no sort of warning or note of caution to the effect that his opinions can only be based on the most scanty information. The main source of information available to Professor Southall was that given in a television programme, and everyone including Professor Southall (we discussed this) is aware how notoriously inaccurate, incomplete and biased is most media reporting.”
Here we come to the heart of head of charge 7g, sir, which, in our submission, is the most serious head of charge in the case. The professor says in paragraph 65:
On reflection, I. assumed that the lack of any caveat that Professor Southall's opinions had been formed without recourse to the data available in the case was simply an oversight. I wanted to give Professor Southall the opportunity to add a caveat of this sort if this was his wish, and accordingly on 10 September 2000, I sent him the following email.”
Sir, can I ask you to keep a finger in page 79, because I want to now refer to that particular e-mail, and to go page 46. You may like to write beside paragraph 65 “See page 46”. Page 46 is an e-mail from Tim David to David Southall, and we see the date was 10 September 2000:
“Dear David,
Please could I put a question to you?
As I am sure you can imagine, there is a good deal of data about this case, both medical and circumstantial. As you know I cannot disclose any details at all.
I appreciate that for all the reasons that you set out, you have great concern about the possibility that Mr Clark rather than Mrs Clark killed the children.
My question is simple. Do you accept that it is possible that there is either medical data, or circumstantial data, or both, that could in fact largely or even completely exclude the possibility that Mr Clark killed either of his children?
I feel I have to ask this question because nowhere in your report did you say something like ‘These opinions are based on the very limited data available to me in the television programme. I have not had the opportunity to study the papers in this case, and I accept that there may be data available that negates or is inconsistent with the opinions expressed here’.
My guess is that you did not insert a caveat like this simply because you were in a hurry to send it off, but of course it is possible that you take a much stronger view. I want to make sure that I fairly and accurately represent your opinions, and hence this email.
Kindest regards.”
Going back to page 779, that e-mail is reproduced on page 79 and 80 and we pick up the story at paragraph 66:
“Professor Southall discussed his provisional reply with me on the telephone. I reiterated that there was an enormous amount of data in the case which had involved a considerable number of experts, and I tried to hypothesise situations that could invalidate his conclusions, including a full confession from Mrs Clarke giving details that could leave no doubt that she had killed both children. Professor Southall pointed out that he had been told by the police, the guardian and the social worker that both, children were perfectly healthy, and I pointed out that they were all non¬medical and could not have a complete understanding of the complex medical issues. Nevertheless, Professor Southall was adamant that nothing other than the very remote possibility of both parents being the joint killers of the children could invalidate his conclusions that Mr Clarke had murdered both, children, and his written reply, sent by fax, was received on 15 September and was as follows.”
Perhaps you can just put “See page 47”. If we go to page 47, this, in our submission, is the most serious document. It reads:
“Dear Tim
I had thought through the issue of whether there might be other evidence not seen/heard by me which makes it impossible or very unlikely that Mr Clarke killed the two children. I should say and should have put into my report that 1 had undertaken a number of discussions with people involved with the case after seeing the video: namely Mr Gardner, the guardian and the senior social worker and had asked questions relating to other possible but extremely unlikely mechanisms for the bleeding and scenarios which would enable rejection of my opinion. I received¬ negative answers to these questions. These were in particular whether any disease had been present in the first baby that might have caused the death that was not reported on the television program. Also any other information relating to the case that made Mr Clarke's involvement impossible. My only smallest reservation relates to an extremely unlikely prospect that both parents are implicated in the deaths. I have never seen this and therefore rejected it. Thus there can, in my opinion and beyond reasonable doubt, be no explanation for the apparent life threatening event suffered by the first baby which would account for the bleeding other than that the person with the baby at the time caused the bleeding through the process of intentional suffocation. The subsequent unexplained deaths of the babies with other injuries makes it likely beyond reasonable doubt that Mr Clarke was responsible.”
“The subsequent unexplained deaths of the babies with other injuries makes it likely beyond reasonable doubt that Mr Clarke was responsible.” Pausing there, that is to the criminal standard of proof this doctor is saying on the basis of this television programme and a few chats with unmedical people that he is of the view that Mr Clark murdered both his children.
I carry on:
“I am not used to giving opinions without all of the evidence being made available and feel vulnerable over my report. However, based on what I saw in that video alone and my discussions with the police officer, social worker and guardian, I remain of the view that other explanations cannot hold. The evidence of the family friend is particularly important.”
You will note the admission made by Professor Southall to head of charge 7g, which states:
“When given the opportunity to place such a caveat in
your report you declined, by faxed email dated 11 September 2000, on the basis that even without all the evidence being made available to you it was likely beyond reasonable doubt that Mr Clark was responsible for the deaths of his two other children.”
Going back to page 82 – that second e-mail is set out on page 81 – picking the account up at paragraph 67 on page 82:
“I was unclear as to the meaning of the final sentence and to clarify this I spoke to Professor Southall again on 15 September 2000. He explained that this referred to the friend who went shopping in London with Mrs Clarke and who returned to the Strand Palace Hotel with Mrs Clarke. The point that Professor Southall was making was that she corroborated what Mr Clarke had said at the time - in other words, Mr Clarke could not have made up the story about the nose bleed at a later date ‘in order to get them off the hook’.
Comments and conclusions
Professor Southall has provided not one item of new data or information, which is hardly surprising since he has had no access to the medical records or other documentation, or to any of the other potential sources of direct information listed above in paragraph 61. The new ingredient, which clearly the Social Services and the Guardian felt they could not ignore, coming as it did from an exceptionally senior member of the medical profession with a particular interest in abuse, was the conclusion that it was beyond all reasonable doubt (the criminal standard of proof) that Mr Clarke rather than Mrs Clarke had murdered his two sons Christopher and Harry. This conclusion, which was bound to have a most potent effect on those with the responsibility for the placement of Jack, was that A's life was in danger while he remained in the care of his father. This aspect was taken very seriously, and the discussion at the Planning Meeting inevitably included a careful consideration of whether or not there was a need to immediate remove A from his father, an action that was decided against.
The association between suffocation and blood from the nose was well known at the time of Mrs Clark's trial. Professor Southall's data had been published two years previously, and the topic was discussed at considered at great length by many experts including Professor Meadow, who himself has published material on suffocation, and a number of paediatric and forensic pathologists who had also done research in this area. The possibility that Mr Clarke had killed his children was certainly considered by the police, who both arrested and interviewed Mr Clarke. The possibility that Mr Clarke had caused Christopher's nose bleed was discussed in my own first report in some detail; indeed of all the possible causes of the nose bleed it was the very first one to be considered.
What has changed? The answer is that there is a huge mass of further information in the form of evidence given at the trial of Mrs Clarke, which I have been working through, the materials that were used for the appeal, which I have also been going through, plus a good deal of additional material that has been sent to me by Mr Clarke. In addition, I have been continuing to collect relevant material from the medical literature on various aspects of the case, including topics as diverse as torn frenulum caused by intubation, scleral haemorrhage and idiopathic pulmonary haemosiderosis. In addition, there is the fact that A has been successfully returned to the care of his father, where he has been placed for the last 9 months.
It is said that an important new point to emerge concerns the incorrect account of the taxi journey home on the day of Harry's death. Plainly there are two possibilities here. Either Mr Clarke got it wrong or he was lying. Whichever is the correct explanation, the fact is that Mr Clarke's evidence has absolutely no bearing on the extraordinary list of key medical issues and uncertainties with which this case is riddled, which I will not reiterate here.
The central general point made by Professor Southall is that nose bleeds that result from suffocation occur at the time of the suffocation and are not delayed by minutes or hours. Although there has been an exceptional degree of disagreement amongst the medical experts in this case over all manner of issues, this is probably the one topic upon which there is remarkably little division.
The inferences, however, that this nose bleed means:
(i) that Mr Clarke suffocated Christopher in the Strand Place Hotel 9 days before his death
(ii) that therefore he killed Christopher 9 days later and that therefore
(iii) he also killed Harry
simply do not follow.
The fact is that there is considerable medical disagreement about the cause of Christopher's nose bleed. Possibilities that have been advanced are:
• nose bleed never occurred and fabricated
• spontaneous nose bleed, maybe due to a slight cold
• nose bleed from accidental trauma from child's own fingernails
• nose bleed resulting from deliberate suffocation
• nose bleed resulting from pulmonary haemorrhage.
The reason for the medical disagreement is quite simply the lack of evidence or data to prove which option is correct. The central weakness of the Southall hypothesis, therefore, is its very starting point (that the nose bleed can only have been the result of suffocation), which is very far from a certainty. The central dogma, namely that all nose bleeds in infants not due to coagulation disorders are due to suffocation, is not supported by any research data, and although Meadow and others have referred to the fact that nose bleeds are uncommon in healthy infants, I do not think that they would go so far as to simplistically equate all nose bleeds in health infants with suffocation.”
Then the professor goes on to deal with the responsibilities of an expert and quotes from various documentation in that area. Can I pick up the account at page 86, which you will be relieved to hear is the penultimate page of this report? Paragraph 78 at page 86:
“There must be real concern that a very senior paediatrician should (i) make the categorical statement that Mr Clarke murdered his two children beyond reasonable doubt (ii) stress that Jack's life is endangered whilst he remains with his father and (iii) criticise the police for failing to heed his advice, purely on the basis of a television programme and information from non-medical individuals, without any recourse to any medical or other factual data about the case, and without having met and interviewed Mr and Mrs Clark.
That this has happened during a period when Professor Southall has been suspended from clinical duties is even more remarkable, given that a condition of the suspension has been that there should be no involvement in child protection work, and given that Professor Southall has been obliged to withdraw from a number of existing cases of suspected abuse.
The claim that Professor Southall is acting purely as a lay person does not, in my view, hold water. His report includes his title of Professor of Paediatrics in two places, and he has supplied copies of his 1997 publication in the medical journal ‘Pediatrics’. It is wholly unreasonable to expect social workers or anyone else involved in the case to treat Professor Southall as no more than a lay passer by.
Professor Southall's actions in this case have resulted in a considerable additional work, but the most negative feature is the unmeasurable resulting pain and stress and suffering placed upon Mr Clarke, who has already had to endure a considerable burden.”
Sir, finally in respect to Professor David and in respect to my opening, Professor David has produced an expert report for your consideration. At some point there will be a debate which my learned friend will have and the Legal Assessor will thereafter give you advice upon as to whether you will be able to actually read this expert report. But I merely at this stage wish to highlight three passages from this report, based on what I anticipate the elements that Professor David will give to the Committee when he gives his evidence.
THE CHAIRMAN: I do not know how long you think this might take. We have got to five o’clock and I am conscious there has been a huge burden on you today.
MR TYSON: I will finish when I have read the three sections, and then I will finish my opening. If you can last for about 10 more minutes.
THE CHAIRMAN: I am sure we can. I do not want in any way to interrupt your flow.
MR TYSON: I could be grateful if we could finish.
If you look at head of charge 59(g) together with head of charge 6 and head of charge 7(d), 7(g) and 5(d) are very similar in their effect. What I anticipate Professor David will say to assist your deliberations when dealing with those matters, in particular the effect of the lack of admissions in relation to those matters can be picked up in what I anticipate Professor David will say when he comes to give his expert evidence. What I anticipate he will say is this,
“It follows that what Professor Southall had when he went to the police was no more than a hypothesis, a theory. This hypothesis was that the nose bleed must have been deliberately caused by the child’s father. This in turn meant that Mr Clark was the person who subsequently killed Christopher, which in turn meant that it was also Mr Clark who killed Harry Clark.
This hypothesis was in fact based on research data from only three very highly selected cases and based on limited information available in the television programme. I think it is fair to say that most practitioners who had come up with a theory of watching a television programme would have probably kept I to themselves, not least because they would have been aware of the limitations imposed by both the lack of first hand knowledge of the case and by a general unreliability of television programmes.
Contacting the police to share with them this theory was, in my opinion, an extraordinary and highly unusual step to take. Nevertheless, provided the informant paediatrician made it plain when contacting the police that the status of the information was no more than a theory, I can see no cause for serious criticism. In my opinion, what was a serious error of judgment was to inflate a theory and give it the apparent status of solid evidence based scientific fact. This error was compounded by the fact that there was no concession to any possible limitations of the theory, for example, limitations imposed by the fact that the originator of the theory had no real direct knowledge of the case and had not studied the medical records, laboratory data and the like.”
He goes on to say,
“I see no objection to a doctor, as a result of watching a television programme, forming a theory and then showing it to the police, but what happened in this case went far beyond that.”
In relation to head of charge (f) and (g), which are the two most important heads of charge in this case, I anticipate that Professor David will be able to assist you in due course in his expert evidence to you to this extent…
THE CHAIRMAN: This is 7(f) and (g).
MR TYSON: Yes, it is. I anticipate he will say to the Committee that,
“It is self evidence that Professor Southall failed to put himself in a position whereby he could provide a competent medical opinion as to the cause of Christopher Clark’s nosebleed, the cause of the death of Christopher Clark and the cause of death of Harry Clark. Since he was not a clinician who had been involved with the children and was not an expert within either the criminal or family proceedings, he did not see any of the medical records and the like. He did not have the opportunity to discuss the case and his meeting with me was a one sided affair.
What is remarkable and quite exceptional about Professor Southall’s report is that it makes detailed comments, expresses categorical opinions about a large number of medical matters without anywhere mentioning that the main source of the writer’s information was the television programme and that the writer had not had access to any of the reports in the case.”
I anticipate Professor David may go on to help the Committee by stating that nowhere in his report does Professor Southall indicate the limitations of his report and that he was of the opinion that this was a serious omission which caused him to write the email that he did.
As is obvious from us readers of this exchange of emails, I anticipate Professor David will be able to say that the effect of this email was, instead of leading Professor Southall to add a caveat, the result was a hardening of the position. He had been given a gypsy’s warning by a colleague saying, “You have gone over the top here effectively. Back off. Put a caveat in.” What does he do? He does not take the advice of his senior colleague to wrap it up by putting a caveat in. He hardens his position by saying in the return email that it was beyond reasonable doubt that Stephen Clark had deliberately suffocated Christopher ten days before his death.
It follows, in my submission, that based on your own observations and the help you will get from Professor David, head of charge 8 will be made out in this case. That is our expectation. That is eight minutes.
THE CHAIRMAN: Thank you, Mr Tyson. We will draw our proceedings for today to end.
MR TYSON: I intend to call first Mr Clark and then all the other witnesses in the order that they chronologically appear. One will get the officer and then the CPS. I anticipate they will all be shortish witnesses, certainly in chief. Despite the admissions I believe my learned friend wants to ask one or two questions, and he is rightly entitled so to do. I anticipate that the guts of this case, if I can put it like that, will be when I call Professor David, will be either towards the end of tomorrow or first thing on Wednesday.
THE CHAIRMAN: Thank you, Mr Tyson. That is very helpful. We will close now and start again at 9.30 sharp tomorrow morning.
(The Committee adjourned until Tuesday, 8 June 2004 at 9.30 a.m.)