GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Wednesday, 9 June 2004
Held at:
St James’ Building
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day Three)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
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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.
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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
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INDEX
Page
APPLICATION RE PROFESSOR DAVID’S REPORT 1
REPLY BY MR COONAN 2
REPLY BY MR TYSON 4
LEGAL ASSESSOR’S ADVICE 5
DETERMINATION 6
TIMOTHY JOSEPH DAVID, sworn 7
Examined by MR TYSON
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THE CHAIRMAN: Good morning. Mr Tyson.
MR TYSON: Sir, I have an application to make. Broadly, this application is that you should receive as a written document Professor David’s expert report. Can I remind you of the learning and ask you to look at rule 50(1) of the rules?
“The Professional Conduct Committee may receive oral, documentary or other evidence of any fact or matter which appears to them relevant to the inquiry into the case before them:
Provided that, where any fact or matter is tendered in evidence which would not be admissible as such if the proceedings were criminal proceedings in England, the Committee shall not receive it unless, after consultation with the legal assessor, they are satisfied that their duty of making due inquiry into the case before them makes its reception desirable.”
In a criminal case, if one was calling an expert, the jury would not have the expert’s report in front of them. What I am seeking today is to go beyond what would happen in a criminal case as stated in the proviso, i.e. that you should not receive it unless you are satisfied that your duty of making due inquiry into the case makes its reception desirable.
In a criminal case, when an expert gives evidence there are no reference documents, there is no report for the jury and the evidence is entirely oral. In a civil case, from the evidence point of view, everybody has a copy of the expert’s report. When you take the expert through his evidence you do it by reference to the written report that everybody has.
What I am seeking here, for the assistance of you basically, is that you should be able to have before you Professor David’s expert report so that when one is going through the evidence, first of all the evidence in chief, it will be shorter because you will then see the material. Secondly, it will be of convenience to you because you can then take the report away and read it and digest it in your own time so that Professor David’s testimony will consist of not only what he says, but also what he has written rather than I having to go through every scintilla of what he has written to bring it forward to you.
Sir, I have to say that rule 50 gives you a tremendous discretion as to what you receive and what you do not receive. As it says at the bottom of the proviso, it is a question that if you are satisfied that your duty of making due inquiry into the case makes its reception desirable, the you have an unfettered discretion to decide that, if you do think it is desirable, then you are permitted to do so.
As a matter of practice, I do a number of cases before your Committee. It is my invariable practice to ask and it is Committees’ variable practice to admit. Having said that, my learned friend who also does a great deal of this work in these Committees, says that it is his invariable practice to ask that it should not be admitted and he is invariably successful, he tells me, with those applications. This is the first time, as you may anticipate from what I have said, that he and I have had to argue this case at the same time in the same room.
My broad submission to you, and I, of course, will want to come back when I hear precisely what my learned friend’s objection is, is that it would be helpful and convenient for you and it would be desirable in the interests of making due inquiry that you actually see what Professor David has written, as opposed to what he is going to say. The
medico-legal report covers different issues from the report that you have seen in bundle C1. That is a report which was directed to the issues in the care case. This report is directed to the issues before you, the appropriate paediatric practice and the appropriate medico-legal practice.
As I said in my opening, I put forward Professor David as an expert in two separate and distinct areas. I will be in a position to show from his curriculum vitae his very considerable experience in medico-legal matters, lecturing to doctors and lawyers about medico-legal matters for him, to be a proper medico-legal expert who can assist the Committee as to what a medico-legal expert should be saying or should not be saying in reports which are tendered, as we would submit this report of Professor Southall is, as a court report, bearing in mind that it says at the bottom of that report that this a report for the Court and that the contents are true.
Sir, that is my broad submission, that you are entitled as a matter of law to receive it. It is a matter for you to decide, in your own discretion, whether you should receive it. The Council’s submission is that you ought to receive it and that it would be extremely helpful for you, not only now, but in your subsequent deliberations.
THE CHAIRMAN: Mr Coonan.
MR COONAN: Sir, it would appear to be a matter of agreement that in a criminal case a document representing an expert’s report would in fact not be placed before the jury. In the same way as witness statements from witnesses of fact are not placed before the jury, those too are not placed before the Committee. You will see that the oral evidence of the witness is supplemented by necessary primary documents. Primary documents, of course, are different from the evidence to be given from an individual witness, either on the one hand a witness of fact or, on the other hand, evidence from an expert.
The starting point must be that you receive, just as in a criminal case, oral evidence from the witness of fact. Therefore, in order for the Council to get this in in this form, recourse must be had to the proviso to rule 50(1), as my learned friend said. Before looking at the basic underlying features, I do draw your attention to the final two lines of the proviso, that you must be satisfied that the duty of making due inquiry makes its reception desirable, reception in that form, and I do emphasize that.
May we therefore stand back for a minute and look at what is something of a unique set of circumstances. Professor David is, first of all, a witness of fact. You know that because of the evidence of fact which is contained in the report prepared for the purposes of the Family Court, his report dated 18 September 2000. A perusal of that report indicates that he had a factual involvement with Professor Southall, first of all, on 28 July, that is the Strategy Meeting, and, secondly, on 8 September when they both met following the sending of Professor Southall’s report of 30 August. Subsequently, there was the exchange of emails and in between times, as that report of 18 September makes clear, a telephone call or the telephone call between the two of them.
First of all, he is a witness of fact. Secondly, he is an expert in the family proceedings and the report of 18 September 2000 is manifestation of that. What he has set out for the assistance of Mr Justice Connell is Professor David’s opinion in the light of the material which he had received from Professor Southall and to deal with the outstanding issues before the Family Court in relation to the Interim Care Order. So, Professor David had a perfectly proper expert witness input into the Court.
Thirdly, and this is the unusual and somewhat unique set of circumstances, he has then been converted by the General Medical Council, following Mr Clark’s complaint, into an expert in these proceedings. In accordance with that instruction and appointment, he compiled another report in July 2003. It is that document that my learned friend now seeks to invite you to receive as a document.
The report of 18 September 2000, which you have already as C1, I do not object to you receiving, and I have not. It is right that you should, because it is a document that was produced as part of the unfolding factual set of circumstances leading up to the hearing before Mr Justice Connell which led to the final order in December 2000. It is also right that you should receive it in that form because in a sense it is a fact, and it also records really what Professor Southall and Professor David had recorded in their conversations, rather like the two memoranda that you have already received. But I do not want it to be thought that because I have consented to that, identical considerations apply to this document with which we are now concerned. It is a wholly different type of document and has a wholly different status.
Sir, that said, what is the objection fundamentally to you having the document? The underlying issues are essentially the matters of fairness, and desirability and due inquiry are concepts which, of course, have to be intertwined and be made subject to matters of fairness. You have already received one report in C1, in which there are criticisms of Professor Southall. Some of those criticisms will be repeated. That which is in the new report is now wholly different, let it be said, not wholly different at all, from that which is in the 18 September 2000 report, but if this document goes in, you are going to end up with in effect three layers of evidence. You are going to end up with the 18 September report, you are going to end up with the 23 July 2003 report, and you are going to end up inevitably with a third layer, namely, Professor David’s oral evidence on exactly the same issues.
My learned friend was good enough to indicate yesterday that it was not his intention, even if this document were to go in, simply to produce it as if it were Professor David’s evidence-in-chief. Now that would be the situation in a straightforward civil case. The document would in effect stand, subject to one or two supplementary questions, as the witness’s evidence-in-chief. That is not my learned friend’s intention. So it really is not going to shorten proceedings. We are going to have to go over the issues again. When you retire, you will have – and we say that this is unfair – in effect pretty well the same point repeated three times, which is not appropriate.
However, it goes beyond that. If the document goes in and if there are within it matters which, if given orally, are inadmissible, there is the risk of prejudice, because there are some matters which, if the evidence were to unfold orally and purely orally, I would have an opportunity of objecting to. If this document goes in, in effect the hare is out of the trap before we can stop it. Thirdly, opinions that Professor David has expressed for the purposes of these proceedings have been expressed, as you will fully appreciate, without regard to the evidence that has already been given in the proceedings by definition, because the report is prepared before the evidence is given. So one would then have to unpick opinions that are expressed on factual assumptions that Professor David has made for the purposes of his report, adding yet a further complication to what I am sure we all agree is something of a complex case, and it will get more complex.
My underlying concern here is that this document should not be made available but that the matter should be kept as straightforward as possible. The usual way of doing it, from my standpoint and my experience, is for you to receive the oral evidence in exactly the same way as all other witnesses. You can be referred to documents that Professor David wishes to refer to. There can be no objection to that as a matter of legal principle, but receiving the document in advance of his evidence is not, in the context of this case, desirable in order that you can make due inquiry. You can make due inquiry, with great respect to the Committee, by adopting the normal course of receiving Professor David’s opinion evidence orally.
Sir, in a nutshell, that is the nature of the objection.
MR TYSON: As a matter of law, unsurprisingly, my learned friend and I are not in dispute as to what the law is and what the position is and what your respective roles are. However, can I remind you of one thing? You are many things but you are not a jury. It is made clear in the authorities that you are rather a sort of hybrid organisation because you are, as it were, professional, competent people who are treated completely differently from a jury, albeit you have to apply the criminal standard of proof. To say that we would not put this in front of a jury is right, and the whole purpose and thinking behind Rule 50 and the proviso to it is to deal with the fact that you are professional people who are not a jury and can have a discretion to exercise your own judgment based on the fact that you are not a jury.
I have to deal with the fundamental nature of Mr Coonan’s submissions to you where he says essentially that it would be unfair. It is not my role as someone prosecuting this case to be unfair to anybody, and that should be taken as read. In my submission, however, his submissions on unfairness do not hold water.
First of all, he says on unfairness that the same point would be repeated three times. It is unsurprising in any cases that we come to the same point from a number of different sources perhaps once, twice, three times or whatever, but to say that you will be getting the same point three times because you will hear his oral testimony and you will have seen what he says in the care report and will see what he says in his expert report for these proceedings is getting the same point three times, you are not getting the same point three times because, as I am at pains to point out, there is some crossover of issues. The principal matters that the expert report goes to are the issues that you are dealing with rather than the issues that the care report goes to, so they have different functions and you are not getting the same message three ways.
Secondly, and extremely surprisingly to me, Mr Coonan said that if the document is admitted to you, there is a risk of prejudice. He said that one can deal with that if the matter is oral. In effect, he must be wrong about that. It is much easier to deal with matters of prejudice if you have a written document in front of you, because all he has to say to me is, “I do not want that passage in” and I will consider the issues of prejudice and in all likelihood take it out if I consider that it is prejudicial. So the report that goes to you can, as it were, be sanitised for prejudice, if I can put it that way, by appropriate discussions between two experienced legal practitioners.
Far less, or much greater, is the danger of prejudice if in oral testimony it suddenly pops out unexpectedly, having not been appreciated before, so for my learned friend to say that the risk of prejudice can be dealt with easier in oral testimony rather than in written matters is, in my respectful submission, a false and wrong point. It is much easier to deal with prejudice in an oral document.
Thirdly, on unfairness, my learned friend says that Professor David’s views are, of course, without regard to the evidence that has been given. That was going to be inevitably the case, and in oral testimony or in written testimony, of course, there have to be supplementaries saying, “We have heard that Mr Mitchell says X” or “The inspector says Y. What do you say about that?” That adds nothing to the desirability of receiving this document at all. The maters that have come up since his report are going to have to be dealt with in any event, and I made it clear that I am going to call him to give oral testimony.
I come back to my initial point. It is a matter for your discretion, if you think it desirable to receive it. I submit to you that it would be desirable for you to receive it because it would assist you in your deliberations both during the oral testimony at this hearing and when you are considering matters amongst yourselves. It is a very helpful aide-mémoire to you. You will have an opportunity of studying it in your own time. It will not be prejudicial to the doctor, it would be not unfair to the doctor, it would assist you considerably, and in my submission would reduce the overall length of time of the testimony in-chief of this doctor and would inform you greater as to the matters. Otherwise I will have to go through, as it were, as I say, every dot and comma rather than referring you to, “Is it right that you say in paragraph 49…?” and just expanding on paragraph 49 rather than having to go through what he says in paragraph 49 and then expanding on it, which is not meant.
It is a matter of proper and proportionate (inaudible) in this case and it will save, in my respectful submission, time and assist you on an important issue. It is not prejudicial or unfair. Those are my submissions.
THE CHAIRMAN: Thank you. Legal Assessor?
THE LEGAL ASSESSOR: Thank you to counsel for very helpful submissions. It comes down to this (by agreement between counsel) as to whether this Committee should exercise its discretion, that applies to Rule 50, to depart from the usual procedure of simply having oral evidence in the form of examination-in-chief followed then by
cross-examination.
Both counsel have touched on the subject of fairness which, of course, is at the very centre of this matter: the whole object is a fair hearing to achieve justice, as it is possible, for the three parties to this case. It is a wide discretion, as counsel said. Of course, “Desire”, “The reception would be desirable”: it seems to me, looking at the word, “Desirable”, that is quite a low threshold of admissibility. I contrast that with, “Necessary”, or “Essential”, for instance.
Mr Coonan raises the issue of admissibility and the consequences of you having a written report where there may be passages, which he objects to. That seems, in my respectful submission, a matter that you should consider very carefully.
This is a departure from that. It is a question of not only whether it will save time (because time is only one small element of the issue of fairness), it is a question of whether it is going to assist the Committee and it is desirable in achieving the fair result.
I do remind the Committee that it is, in my submission, (inaudible) your procedure that should be considered very carefully.
That is my advice at this stage. I may advise further on the points if that assists you.
THE CHAIRMAN: Do either counsel wish to come back?
MR COONAN: No, thank you, sir.
THE CHAIRMAN: Thank you very much. The Committee will retire to consider its decision straight away. Thank you.
STRANGERS, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READM ITTED
THE CHAIRMAN: Mr Tyson, the Committee have carefully considered your application under Rule 50 of the Professional Conduct Committee Procedure Rules that the report of Professor David (the General Medical Council’s expert witness) be admitted in evidence prior to him giving his oral testimony. We have also considered the submissions of Mr Coonan and the advice from the Legal Assessor.
The Committee have been mindful of the interests of the public and the interests of Professor Southall and, in all the circumstances, the Committee have determined that it is neither fair nor desirable to allow Professor David’s report to be admitted under Rule 50 of the Committee’s rules of procedure. Accordingly, your application is rejected.
Just before you call your expert witness, can I point out that we have just readjusted your microphone in your absence because the shorthand writer was having some difficulties picking you up? Can I also invite you (because I know you will be going on some time) that we will want to stop for a break sometime between quarter and half-past 11 and for lunch round about one o'clock. I say that so that I do not interrupt your flow unnecessarily. I leave it to you to pause at a suitable moment.
MR TYSON: I wonder if I can beg your indulgence so that I can have a quick word with Professor David to tell him your decision?
THE CHAIRMAN: Yes.
MR TYSON: And to see what notes that he has? It is right that I have discussed with my learned friend and that he (my learned friend) has very kindly permitted
Professor David to have a copy of his own report of his side, as it were, to refer to if necessary. I am extremely grateful for my learned friend for allowing that. If I can have a slight, quick word with Professor David, perhaps?
THE CHAIRMAN: How long do you think that might take?
MR TYSON: Five minutes.
THE CHAIRMAN: Yes.
(Later)
MR TYSON: For the assistance of the Committee, what is happening is that all the appendices in this report are being taken out (tab 1 which is the actual report itself) so you will be able to see the learned articles of Professor David.
I call Professor Timothy David
TIMOTHY JOSEPH DAVID, sworn
Examined by MR TYSON
Could you give to the Committee your full name, please, and your professional address please?
A Timothy Joseph David. The address is Booth Hall Children’s Hospital in Manchester.
MR TYSON: Before I ask you to give any further evidence, Professor David, can I ask to be produced the next C number, the appendices to your report?
THE CHAIRMAN: C4, I think, Mr Tyson. (Same handed)
MR TYSON: Professor David, can I ask you, please, to look at tab 2 of C4, which has got a shortened CV and a longer CV, if I can put it that way? Can you just look at the shorter CV, which is figure 60 at the top? Have you been Professor of Child Health and Paediatrics at the University of Manchester since 1991?
A Yes.
Q Do you have the qualifications there listed, including Membership of your College. Can you assist us as to those two Colleges of which you are a Fellow? I believe Professor Southall is a Fellow of the same Colleges?
A Yes. FRCP is Fellow of the Royal College of Physicians. FRCPCH is a Fellow of the Royal College of Paediatrics and Child Health.
Q You list your special interests there, including general paediatrics, child abuse and medical education. You say that you have had approximately 330 scientific and medical publications, including 30 books and conference proceedings. Is that right?
A That is right.
Q You list your other professional works, including being an examiner for the bodies there listed and a reviewer for the bodies there listed, including the Commission for Health Improvement and an assessor for the General Medical Council?
A Yes.
Q You are an examiner for the Royal College of Paediatrics and Child Health?
A Yes.
Q Can we go to the second document, which is headed “Present appointment and previous posts”? This sets out in some greater detail your previous posts and you involvement with medico-legal matters?
A Yes.
Q At page 1 you set out your previous posts, initially in the West Country. You came to Manchester in 1978 and since then have been at the Department of Child Health, of which you are now a Professor?
A That is right.
Q Perhaps you could take us through the child protection related activities and other matters in this document helping the Committee as to your expertise in matters relating to child protection matters and medico-legal matters?
A I am not sure that this demonstrates any expertise, but there is a list of societies that I am a member of. There is a list of international conferences relating to child protection work that I have attended. Then there is a list of other things and then there is a list of publications in this area.
Q Under those publications in this area are these publications to either medical students or lawyers relating to the cross-over, what medical students and/or lawyers should know about child protection matters and about medico-legal evidence?
A It covers those areas, yes.
Q On the third page there is a list of the number of lectures you have given to lawyers about medical matters on child abuse, fractures, non-accidental head injuries, Munchausen by proxy, the sub-set of sudden infant deaths that are suspicious and an overview of the main features of shaken baby syndrome and features of physical neglect of children. You gave those lectures?
A Yes.
Q You have also given other lectures, both on expert witness conferences on medical experts at the Expert Witness Institute Conference in 1999 about the experience of expert evidence and to other organisations on the roles of medical experts in child matters?
A That is right. It does not include any lectures I have given to medical audiences.
I have just never collected the details.
Q Just as you have given lectures to lawyers about medical matters, have you also given lectures to doctors about legal matters?
A No, not about legal matters. I do not really consider I am any great authority in that area at all.
Q But about medico-legal reporting?
A No. I have given lectures on the case of Louise Woodward, but those talks were about the medical evidence that was given only.
Q Can I deal, first of all, in this part of giving your evidence with factual matters, as opposed to matters arising out of your report? First of all, as a factual matter, can we deal with Christopher Clark, the eldest child? To your knowledge was he born in
September 1996?
A Yes.
Q Prior to his death what was his state of health?
A He was apparently in good health, other than a nosebleed that he had a few days before he died.
Q As a result of your involvement in the case, did you have to investigate his state of health at the time of his death?
A Yes.
Q When you say that he was in apparently good health prior to his death, what do you say about his state of health at his death in very general terms?
A In general terms, there was clear evidence that he was not in good health immediately prior to his death. There was evidence that he was significantly unwell.
Q At the time of his death do you understand that he was reported to be alone at home with his mother?
A That is my understanding.
Q And that the father was reported to be at an office party?
A Correct.
Q That the findings at post mortem at the time of his death by the Home Office Pathologist were that his death was reported to be due to lower respiratory tract infection?
A That is correct.
Q As a matter of fact, have you seen the report of the Home Office Pathologist?
A I have.
Q If we turn to Christopher Clark’s nosebleed for a moment and just deal with factual matters, were there a number of features looked at as to the accepted cause of death of Christopher at the criminal trial?
A There were.
Q Did those features include the question of the nosebleed?
A Yes.
Q As a matter of fact, what is your understanding of the factual basis for that nosebleed?
A The factual basis is that it was reported by Christopher’s father. I interviewed him and he gave me the details of the episode. That was how I obtained first hand information about it.
Q What was the information that you obtained?
A The information was that Mr and Mrs Clark were staying at the Strand Palace Hotel in London and they had with them Christopher. I think the purpose of the visit was to meet up with friends. They had previously lived in the south of England and moved to the north of England, and went down south to meet up with friends. If I recollect correctly, Mrs Clark went out on the morning in question leaving the baby Christopher in the care of Mr Clark. It was during that period that Christopher had a nosebleed.
Q What was reported about that nosebleed?
A There were several things reported. One was the question of whether the nosebleed was from one side of the nose or whether it was from both sides, which was a topic of interest to me and which I specifically asked Mr Clark about. Another aspect of the episode was that, in addition to the nosebleed, the baby had some difficulty breathing temporarily. I think they were the two primary abnormalities at the time and Mr Clark described to me what he did, both in terms of dealing with the blood and also in terms of summoning assistance or help. I recorded all that information.
Q Again, dealing with the factual history, was the second child of the family, Harry, born on 29 November 1997?
A Yes.
Q Was he reported to be in good health, but died suddenly and unexpectedly at home eight weeks later in January?
A That is right.
Q From the report that you received, was he then in the care of his mother in an upstairs room whilst the father was in a downstairs room?
A That is right.
Q Was there a post mortem examination on Harry?
A There was.
Q Was it performed by the same Pathologist who reported on Christopher?
A It was.
Q What were the headline matters in that post mortem?
A I would have to look up my notes to give you all the details. There were many. This will not be in any particular order. The abnormalities that he reported were tears in the brain. They are called contusional tears. He reported that there was bleeding into the retina, which is the back of the eye. Together they were very important findings, because, had they been true, they would have been pointers to one or more episodes of violent shaking. There were other abnormalities. I am speaking from memory. They included abnormalities of two ribs. There was a report of an abnormality of the spinal cord.
I would have to look at my notes.
Q I just asked for the headlines. What was the conclusion of the Home Officer Pathologist in his report as to the cause of death?
A The conclusion was that the contusional tears of the brain and the retinal haemorrhage, combined with the fact that the child had died suddenly and unexpectedly, was an absolutely clear pointer to the child having been shaken to death.
Q Again, as a matter of fact, as a result of those post mortem findings, was there another look at the Pathologist’s findings in relation to Christopher?
A That is correct.
Q As a result of that re-examination, what happened?
A As a result of that re-examination there was a re-appraisal of the findings that had been made at the original post mortem of Christopher. There was additional information provided about the pathology.
Q As a result of those re-appraisals and additional investigations, was a different result come to about the cause of Christopher’s death?
A Yes. The Pathologist basically changed his mind and said that he had been incorrect to conclude that Christopher had died from a respiratory infection, and that his death had been unnatural.
Q Did the Pathologist give a mechanism of the unnatural death?
A The suggestion was that the unnatural death had been the result of suffocation.
Q Again, sticking to the facts, was a third child born in 1998 to Sally and Stephen Clark, who we have called in these proceedings Child A?
A Yes.
Q As a result of the pathological findings in Christopher and Harry Clark, as re-examined, did that lead to a police investigation of both Mr and Mrs Clark, both of whom were arrested and interviewed by the police?
A My understanding is that is correct.
Q Did such investigation lead to two separate legal actions, one criminal and one involving Child A?
A That is right.
Q Was the criminal action the fact that the police charged Mrs Sally Clark with having murdered both children?
A That is correct.
Q Was the civil action that the local authority, the Cheshire County Council, initiated care proceedings in respect of Child A?
A That is right.
Q Were the parties to the care proceedings in respect of Child A the local authority as the applicant and the parties to that were Mr and Mrs Clark and the guardian representing Child A?
A There were four parties – the local authority, the guardian and the two parents, who had separate legal representation.
Q We saw the guardian, Mr Mitchell, give evidence yesterday?
A That is right.
Q So far as your involvement in the matter, Professor David, when did that start?
A My involvement started in March 1999.
Q How did you become involved in the Clark saga, if I can put it that way?
A I was approached to see if I would be willing to assist in the care proceedings. The approach was made, I was told, because of my interest in shaken baby syndrome and because of the report that Harry had been shaken to death. That is how the approach was made, and I think I actually declined it at first but was persuaded to agree to help.
Q What effectively were you asked to do in the care proceedings?
A I was asked to prepare a paediatric report overviewing all the medical and related evidence in relation to both children.
Q Were you instructed by one or a number of the parties to the care proceedings?
A I was instructed jointly by all four parties.
Q Was it, as it were, an independent overview report into the deaths that you were asked to prepare?
A That is correct.
Q How simple a task was that for you, Professor David?
A I would say that it was the most complex case that I think I have ever had to investigate. The work took in the order of six months in the first place, and that really was to produce what was an incomplete report. It was an enormous exercise of quite exceptional complexity.
Q Included in your preparation for this report, did you read and indeed interview many of the medical experts who had already reported in the criminal case?
A I read all the papers and had to keep asking for papers because they were often incomplete, and I had number of meetings with various people. First of all, I interviewed separately and later together Mr and Mrs Clark. I actually interviewed them on five occasions. I had a number of meetings with health professionals. They were of two sorts really. One group was other experts and, to give you an idea of the scale of the task, there were something like 20 other experts involved in preparing reports in various aspects of what in effect were two completely separate cases.
Q With my learned friend’s leave, I will lead on the other experts and professionals. You said that there were 20 or so other experts. Were there two forensic or home office pathologists?
A That is correct.
Q Were there two neuropathologists?
A There were.
Q Were there six paediatric pathologists?
A There were.
Q Was there one ophthalmic pathologist?
A Yes.
Q Was there one medical geneticist?
A Yes.
Q Were there five paediatricians?
A There were.
Q Was there one paediatric cardiologist?
A There was.
Q Was there one paediatric radiologist?
A Yes.
Q Was there one paediatric haematologist?
A There was.
Q Was there one paediatric ophthalmologist?
A There was. I should add that in fact, because we have listed those specialists, my work actually covered a third child, which was Child A, because in fact there were a number of medical investigations made into Child A and some of the experts that we have listed were involved with Child A, so that my work, to be accurate, looked at the two children who had died but it also looked at a lot of information that was available concerning the living child as well.
Q In relation to the living child, did you see and examine that child?
A I did.
Q When preparing your report, did that involve merely staying in Manchester?
A No. Part of my work involved going to meet and discuss aspects of the case with some of the experts that we have listed who were all over the country. For example, I went to Bristol to meet with Professor Berry, I went to Sheffield and Leeds to meet with various experts, but a lot of the work was actually not just meeting those experts but was going to interview health professionals. They were mostly nurses and doctors who were directly involved with Christopher, and that was a lot of work. In addition, I went to Toronto in Canada to meet with two other experts who were not actually involved in the case but whose advice I sought.
Q You have indicated that you saw and examined the surviving child. Did you interview Mr and Mrs Clark? I think you may have given this evidence already.
A I have said that I interviewed them five times, both separately and then together.
Q In addition to having individually met many of the experts and done the research that you have told the Committee you did, was there an experts’ meeting held?
A There was.
Q Could you assist the Committee as to the purpose of an experts’ meeting in child care proceedings?
A It is common to hold a meeting between experts in care proceedings. The aim is to narrow down the issues in order to save court time and sometimes to save doctors actually going to court to give evidence. The procedure is that the lawyers involved draw up an agenda, which is really a list of questions for the experts, and the job of the meeting ultimately is to produce a document, which is called a schedule of points of agreement and disagreement. It lists all the points that experts agree, which obviously is helpful because if everybody agrees a point, then it does not necessarily need to be discussed in any detail in court, and it lists the points of disagreement, and that is helpful to the process. That is the ultimate output of an experts’ meeting, this schedule of points of agreement and disagreement.
Q After that experts’ meeting, did you then prepare a report for the care court?
A I did.
Q Was that in October 1999?
A It was.
Q About how long was it?
A It was 354 pages long.
Q Did it make reference to a number of articles in the medical and scientific literature?
A It did. It referred to 569 articles in the medical and scientific literature.
Q Professor David, have you prepared a number of medico-legal reports for various courts in your professional career?
A I have.
Q Would you describe yourself as highly experienced in giving medico-legal reports to courts of various kinds?
A I would never describe myself in those terms.
Q I should not have led you on that. Are you experienced in giving medico-legal reports?
A I am.
Q In your experience, where does the preparation, drafting and creation of this report come in the work that you had hitherto done?
A In terms of scale, it was unprecedented. The complexity of the medical science in what were actually three cases, because there were a number of abnormalities in the surviving child that had to be considered very carefully in relation to the causes of death of the two children, was unique.
Q Did you then prepare a second report for the care proceedings a month later in November 1999?
A I did.
Q Did that contain further information?
A It contained a note of further work that I had done and it included information obtained at further meetings that I had held with colleagues.
Q Is it a matter of fact, Professor David, that no leave has been obtained from the care court for you to make reference to the contents of those first two reports that you prepared for the care court?
A I think that is correct.
MR TYSON: So they are not before the Committee. Sir, that might be a convenient time.
THE CHAIRMAN: We will break now and start again at quarter-to-12.
(The Committee adjourned for a short time)
MR TYSON: Professor David, we are still dealing with matters of fact. You told the Committee just before the adjournment that you prepared your first report of some
350-odd pages in October 1999 and a second report in November 1999. As a matter of fact, were there matters relating to the cause of Christopher’s death canvassed in your reports over and above the issue of a nose bleed?
A Many issues, yes; well, several issues.
Q You told us that you prepared your first long report in October 1999. Was that report used in a rather unexpected forum as a result?
A Yes.
Q What happened?
A At a very late stage, I was ordered to attend the criminal trial of Mrs Clark and give evidence. I attended the court in Chester in October 1999 and gave evidence.
Q On whose side were you ordered to attend?
A I was completely independent, of course, but I was instructed to attend by the defence.
Q Again dealing with matters of fact, it is right that on 9 November Mrs Clark was convicted of murdering both children. Following such convictions, as a matter of fact, what happened to Child A?
A Child A was returned after a matter of weeks to the care of his father, Mr Clark.
Q Following the conviction of Mrs Clark, did you have a continuing involvement in the care proceedings?
A Yes, I did.
Q Were you reporting matters and development to any person in particular?
A Well, I was. I was in receipt of, well of a large amount of material, which consisted of additional reports by other experts. It consisted of other medical literature and it also included the results of my own further work and, as a routine when I put any comments into writing, they went to Mr Wheeler, who was the lead solicitor in the care proceedings as the agreement was that he would be informed about everything.
Q As a matter of fact, was the first appeal against Mrs Clark’s conviction held in July and judgment was eventually handed down in October of 2000?
A That is my understanding.
Q I want to ask you about a case in which you became involved about a seven week old child who died whilst in the care of an adult male?
A The child did not die. The child collapsed on two occasions whilst in the care of an adult male and on each occasion the child was brought to hospital. But she did not die, she survived.
Q Were you the first paediatrician who was instructed by the prosecution in that case?
A No. I was approached by the police in Hyde who told me that they were in a very difficult position: this was the child who had twice collapsed and been admitted to hospital, the doctors who were involved were concerned as to the cause of the collapse, they had done various investigations and they formed the view that these two collapses were the result of this child (the little girl) having been suffocated by the male adult who was looking after her. They, in turn (these doctors), sought the advice of another Consultant Paediatrician in Manchester, who has an interest in this area, and the view of this other doctor was the same as the view of the referring paediatricians, namely that this baby had been suffocated. The police, therefore, commissioned an expert report from Professor Southall, who prepared a report in the case. My involvement came about because Professor Southall had written to the police saying that he was - words to the effect, you have the document - the effect that he was going to have to withdraw from further involvement in the case because he had been ordered to do this by his employer.
Q Would you look, please, at our bundle of documents, which we have marked as C1, at page 8? Was this letter in the bundle of documentation that you got when you were asked to take over, as it were?
A Well, it was given to me by the police. They found themselves in a very difficult position because the case was well under way and they were aghast to find that their expert had been obliged to withdraw and they were very anxious to try to find someone to replace him. I do not know who else they might have approached but in the end they came to me and pleaded for my assistance.
Q The Committee is familiar with this letter, it was a letter written in November 1999 by Professor Southall to an officer. Is this the same officer who instructed you?
A I am not sure if the word, “Instructed”, is right, but this was---
Q Involved?
A ---this was the officer who involved me and who gave me the documents and who told me about the case.
Q Yes. We see this is a letter that half-way through says:
“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.
This means that until the inquiry is completed I will be unable to finish or produce any further reports regarding the case on which you have instructed me”?
A That is right.
Q As a result of that, also in the papers that you were given in the case, was Professor Southall’s report to date (or reports to date) included in those papers?
A It was. He had prepared a report that was dated 27 September 1999 and I was given that.
Q Did you prepare a report? Did you, as it were, come to the assistance of the police?
A I did. I agreed to help the police and the Crown Prosecution Service and I prepared a report on the case which they used.
Q Were your professional paediatric views similar to or different from those of Professor Southall?
A Well, my recollection is that my views were the same as his; we both agreed with the view of the referring doctors, that it was very likely that this child had been suffocated by the male who was looking after her.
Q Why do you wish to bring to the attention of this Committee that other case?
A Well, the relevance of it is that at a later stage in the Clark case, after the trial, after Mrs Clark had been convicted, I had a further request for assistance by the four instructing solicitors in order to consider the concerns that had been raised by
Professor Southall and in due course I attended a strategy meeting and I met later with Professor Southall and I had to prepare a report discussing the views that had been put forward by Professor Southall. I thought it was bizarre that on the one hand he was withdrawing from cases he was already involved in, on the basis that he had been ordered to discontinue all his child protection work, and yet, despite that, he was getting himself involved in the Clark case. I thought that was quite extraordinary. I found it difficult to understand how one could be ordered to discontinue all involvement in child protection work and yet actually to be involving oneself in new cases.
Q Dealing with the chronology, still dealing with matters of fact, we see that that letter was written to the police in November 1999. Was there a television programme made and broadcast on 27 April 2000 about the case?
A Yes.
Q We have seen that programme. Can I ask you this: as a matter of fact were you asked by the makers of that programme to assist in anyway with the compilation of the programme?
A I was and I did.
Q We can see that as a matter of fact we failed to see your handsome visage on the programme. Were you invited to appear on the programme itself?
A Yes. The position is that I was asked for my assistance and I, first of all, had to point out that the information relating to the case was confidential. My involvement was through the care proceedings and all matters relating to care proceedings were confidential. It was put to me that this was going to be a responsible piece of reporting made by reasonable people and that I had a duty to assist them. What I did was to put that matter to the instructing solicitors and I said to them quite simply, “Look, I have been asked to help with the making of this programme, I cannot talk to the media about this case without your permission, what is your advice?” And there were other matters that were raised at the same time and my understanding is that this was discussed with the judge and the judge actually made an order giving me permission to give information to the makers of the programme about the case.
Now you have asked why I was not on the film. The answer is that for many years it has been my practice to not agree to be interviewed on camera or in a radio programme. I have on a few occasions been willing to assist the media, who seem to be making serious attempts to research a subject. But despite very considerable pressure that was put on me by the makers of the programme, who came to see me in person, I did not agree to be interviewed on film but I did agree to explain to them some of the medical science that was involved, which was really very complicated and I could see that they were going to have great difficulties understanding the medical science without some help. That is what I did. As I say, they tried very, very hard to persuade me to be interviewed on film. Mr Jessel, whom you saw on the film, came in person and employed various tactics but without success.
Q At the end of the day you provided technical assistance but did not appear on that film?
A That is right. In due course you understand, as a matter of fact, that
Professor Southall saw that programme and, as a result of what he saw, you have heard the evidence yesterday and seen the documents that he initially contacted Mr Gibson of the Staffordshire Police and that led to a interview with Detective Inspector Gardner of the Cheshire Police?
A That is my understanding.
Q We have brought ourselves factually up to and including the situation that existed by the time that Detective Inspector Gardner was involved. Can I now ask you to switch from your factual hat into an expert hat to assist the Committee? If I can find it, I will ask you to look at the heads of charge in this case. Do you have a copy of those in front of you?
A I do.
Q We have seen that Professor Southall has admitted in paragraph 2 that he watched the “Dispatches” programme. He has admitted in head of charge 3 that he, as a result of the information he gleaned watching that programme, he contacted the
Child Protection Unit of Staffordshire Police because to voice his concerns about the views how the abuse to Christopher and Harry Clark had occurred. He has admitted in paragraph 4 and head of charge 4 that he met Detective Inspector Gardener and, in effect, told that Detective Inspector (a) that Stephen Clark had deliberately suffocated his son at a hotel prior to his eventual death. He has admitted that, in effect, that meant Stephen Clark was implicated in the death of both Christopher and Harry Clark. Professor Southall has admitted that he told Detective Inspector Gardner there was concern over Stephen Clark’s access to and the safety of the Clark’s third child.
If I can go to head of charge 5, it is admitted that at that time the Professor was not connected with the case. He had admitted that he made it clear that he was acting in his capacity as a Consultant Paediatrician with considerable experience of life threatening child abuse. He has admitted that at that time he was suspended. He has admitted that he knew that it was an agreed term of the Trust’s inquiries that led to such suspension that he would not undertake new outside child protection work without prior permission of the Acting Medical Director. He has admitted that he sought permission of the Acting Medical Director prior to contacting the Child Protection Unit and prior to meeting Detective Inspector Gardner. He has admitted that he relied on the contents of the “Dispatches” programme as the principal factual source of his concerns.
The area I now wish to cover with you as an expert, doctor, is the next sub-paragraph, which he has not admitted, namely that it is alleged that Professor Southall had a theory about the case as set out in head 4, which he sought to present as scientific fact as underpinned by his own research. Do you see that?
A Yes.
Q The area I now wish to discuss with you as an expert is Professor Southall’s own research. For the purposes of the Committee, can you and they look at tab 6 of bundle C4? Perhaps it would help all of them if, with a Post-it sticker, they went to page 318 at the top right hand corner of tab 6. Is that an article written by, amongst others, Professor Southall as the lead in a journal called “Paediatrics” published in November 1997 entitled “Covert Video Recordings of Life-threatening Child Abuse: Lessons for Child Protection”?
A Yes.
Q In our bundle does that article go from pages 318 to 343? Does it include in that article a table 3, which we see at page 324 in our bundle?
A It does. The answer is yes to both questions.
Q Does table 3 carry on for a number of pages up to and including page 327?
A Correct.
Q To assist the Committee, does this table relate to the 39 children that were the subject of this scientific article?
A It does. It gives details of each of the subjects.
Q We can see in the first column the identity. Each child is given a number. It starts with 1 at page 324 and goes to 39 at page 327?
A That is right.
Q So the Committee can see before we analyse it, does it set out what is there described as apparent life threatening events which took place in the infants number 1 to 39 along the top?
A That is right.
Q Is one of the headings entitled “Bleeding”?
A That is correct.
Q Just under the words “Life-threatening event” on the next column. In relation to each child, is it there recorded whether in the apparent life-threatening event that had led the child to be examined by Professor Southall, whether or not the previous event that had led them to come to hospital in the first place was accompanied by bleeding and, if so, to where?
A It is documented for each case.
Q Pausing on the history of this matter, and correct me if I am wrong, is it right that this is essentially a study of 39 infants who had suffered an apparent life-threatening event, and we will come to the definition of that in due course, the description of which was provided by parents?
A That is not quite an accurate description of the study.
Q You tell the Committee?
A My understanding is that these 39 children were referred for further investigation to Professor Southall’s unit in Stoke-on-Trent, the referral being because the doctors looking after the children were very concerned about the possibility that some sort of interference by a parent had caused hitherto unexplained episodes of illness in the child. These 39 children were admitted to a special part of the unit at Stoke-on-Trent and they were studied with covert video surveillance. The data on apparent life-threatening events, as I understand it, really relates to events that had been reported prior to the child actually arriving at Stoke-on-Trent, so this was historical information from the past.
You have really got two headings in table 3. On the left you have got the details of what are called apparent life-threatening events. On the right hand side of the table you have got the letters CVS. That stands for cover video surveillance. That means that the mother and baby were filmed without their knowledge. Under that heading you have got the findings that were made during covert video surveillance, including the duration, the age of the child, what was used to suffocate the child and other information, such as the outcome, which is in the right hand column. You have really got three bits of data. Other than the basic case number and sex, you have got the life-threatening events, the information on the left, covert video surveillance data on the right and then in the right hand column what was actually the outcome for the child. That is the structure of this table.
Q On page 327 underneath the table is there a comment?
A There is. Do you wish me to read it out?
Q Yes?
A At the bottom it says,
“The number of ALTE…”
ALTE is an abbreviation for apparent life-threatening events. I will start again,
“The number of ALTE reported refers to information received from the parents and must be considered with caution.”
Q Read on?
A It says,
“In many cases, however, the numbers concurred with those reported by the referring hospital. Information on whether the child was unwell during events was more objective, originating from paramedics, nurses and doctors.”
Q By the very nature of things, can an apparent life-threatening event, and again we have skirted round the definition of that for the purposes of this discussion, take place both within and without hospital?
A It can take place anywhere.
Q Going back to page 324 for a moment, in respect of nosebleeds in an apparent life-threatening event, do we get one in the case of child number 2?
A Yes.
Q And child number 11?
A Yes.
Q And child number 33?
A Yes, and also child number 37. It may just help the Committee to understand this table for them to know that there were 30 cases where there was evidence on video surveillance of somebody, usually the mother, doing something like suffocating the child, but there were 9 where there was no such evidence. Case number 37 was a case where nose bleeding had been reported with a previous life threatening event, but in that case there was no evidence of suffocation during cover video surveillance during a period of seven days. So, there is a difference between that fourth case and the first three that have been highlighted, because in the first three there was evidence on video surveillance of somebody intentionally suffocating the child.
Q Can you assist the Committee by in effect summarising the data on table 3 that we have just been looking at? Pausing there for a moment, the Committee may be assisted where it is partly summarised by looking at a report that you subsequently did which is before the Committee, if they look at page 56 of bundle C1?
A Is that my appendix 3?
Q No. If you look at page 56 of C1, so that we are all looking at the same document?
A Yes.
Q For your assistance and for that of my learned friend your summary was also dealt with in the report which the Committee cannot see that dealt with it in a slightly different way. Let us deal with the document we do have. How do you summarise the data from the table that we have just seen?
A Point one is that there were 39 children who were studied using cover video surveillance. Point two is that in 30 of those 39 cases video recording has documented attempted suffocation of the child. Point three is that in nine of these 39 cases video recording did not document any attempted suffocation of the child. Point four is that of the 30 cases in which suffocation occurred during surveillance there was a history of bleeding from the nose and/or the mouth during a previous apparent life-threatening event in 9 cases.
Q Pausing there, in how many was there a history of bleeding just from the nose as opposed to the nose and mouth?
A There were just three where it was from the nose.
Q Pausing there again for a moment, in the case of Christopher, was there any bleeding from the mouth?
A No. The bleeding in the case of Christopher Clark was just from his nose. There was no evidence at all that he had had any bleeding from his mouth. For example, there was no blood on his clothes from his mouth.
Q Carry on at 40.5?
A Of the nine cases in which suffocation did not occur during surveillance there was a history of bleeding from the nose and/or the mouth during a previous apparent life-threatening event in two cases.
Q And from the nose alone?
A Of those two cases, one was from the nose alone.
Q Would you like to carry on?
A Paragraph 6 really summarises. It says that in the 39 cases studied there were 11 in total in whom there was a history of bleeding from the nose and/or the mouth during a previous apparent life-threatening event. Paragraph 7 is that the source of the information about the bleeding was the descriptions given of the apparent life-threatening event by the parents. I think one may need to add to that, although it is not in that report, that there may also have been information from other observers in some cases.
Q You are saying that there were 11 cases involving a history of bleeding from the nose and/or the mouth. Can you remind the Committee how many were from the nose only?
A In total there were four. Out of the 39 there were four babies where there was a history of bleeding from the nose. In three of them during covert video surveillance there was evidence of intentional suffocation and in one of them there was no evidence of intentional suffocation during covert surveillance.
Q Point 8?
A Point 8 is that in no case did Professor Southall or his team actually see bleeding from the nose or mouth during covert video surveillance. In other words, in the babies where he did see attempts to suffocate the baby during video surveillance, in none of those was there any bleeding from the nose or the mouth, and Professor Southall’s explanation for that was that the way the arrangements worked in Stoke-on-Trent, the carer who was with the baby was not actually allowed to suffocate the child for any length of time because there were staff watching in a separate room on a television screen what was going on and when they saw that something was being done to interfere with a baby, they would immediately go in and intervene.
Q Was any data collected as to whether the nose bleeds observed were from one nostril or another or bilateral?
A No, there was no data on that at all.
Q As far as his paper is concerned about his research data on bleeding, do you have any comments on the quality of that research and/or the usefulness of it?
A Do you mean the research paper overall or just in relation to nose bleeds and suffocation?
Q In relation to nose bleeds and suffocation.
A The data linking nose bleeds to suffocation in this study consists of three cases. Obviously, that is a very small number of cases. In all of them, one is relying on information from other people, whether it is parents or other observers, so it really is very limited data by any standards. It is nevertheless worth having, and I have commented elsewhere that I do not think there is any other similar data to this.
Q I will just carry on about the research data. In relation to the timing of nose bleeds due to trauma, which is a separate area, it is Professor Southall’s view that nose bleeds occur immediately after trauma, as I understand it?
A That is my understanding as well.
Q What is your view on that issue?
A My opinion is the same. The exam question is, “If a baby has been suffocated and that act causes nose bleeding, does the nose bleeding occur right away or is it delayed?” and I think that Professor Southall and I completely agree that when suffocation causes nose bleeding, it happens right away.
Q That is, as it were, the third proposition. The first proposition is “if there has been suffocation”?
A Yes.
Q If that suffocation produces a nose bleed, i.e. the second proposition – or perhaps it is not the second proposition – the proposition is that in those circumstances, you and Professor Southall agree that the nose bleed is likely to occur immediately after the trauma?
A Correct.
Q It follows from that, does it, that the fact that nose bleeds immediately follow after trauma requires there to have been (a) suffocation and (b) that the suffocation caused the nose bleed?
A If the suffocation was the cause of the nose bleed, yes.
Q Can I turn, having looked at the aspects of Professor Southall’s research in this case, to your comments for the assistance of the Committee as to how appropriate or responsible it was for Professor Southall to contact the police having seen the Dispatches programme? That is the area that I wish to discuss or get your views on, Professor David. Can you give the Committee your views about the advisability of relying on media reports generally?
A At the risk of causing offence to people in this room, I think it is common knowledge that the reporting of things in this area in the media in Britain is appalling. When one is involved in a case, one can see how the depths of inaccuracy are plumbed, and I think that is common knowledge among any experienced health professionals when they see cases that they have been involved in reported in the press. I think that means that when one reads something in a paper or watches a television programme one has to remind oneself that the information may have been portrayed in an inaccurate or very misleading way. What one can be absolutely sure of is that vital and important information has been omitted by the maker of the programme, who is interested in sensation or entertainment rather than education.
Q Do you have any observations that you wish to make to the Committee about the editing process that takes place in media reports?
A I do not think I am in a position to give any information to the Committee about the editing process. What I do know is that important medical information is all too often omitted for various reasons, one of which is, I am sure, that if they broadcast all the information that was recorded, the programme would take days to watch, so obviously there has to be editing, but sadly all too often vital information is omitted, with the result that what is portrayed is seriously misleading.
Q Would you look please at page 26 of bundle C1? Just to put that in context, it is the meeting of Professor Southall on 25 July with the social worker and the guardian. Could you look please at page 27 under the three lines following the words “Stephen’s Role” in the second paragraph? That reads:
“It was understood by all three of us that Professor Southall’s knowledge of this case derived almost exclusively from the Despatches programme. He depended entirely therefore upon what was said about the nose bleed at the Strand Palace Hotel.”
A That is what it says here.
Q Armed with what he had seen on the television programme and armed with his own research, what is your view of the material that Professor Southall had when he contacted the police?
A It will have been incomplete, in that it only included at tiny fraction of the actual data. Only a small number of people involved in the case were actually interviewed. That is not necessarily a criticism, because obviously there may be other people, like myself, who do not wish to be interviewed, but the fact is that most of the relevant information about the three children in this case was not included in the programme.
Q Can we just turn to the heads of charge for a moment and look at paragraph 4? That is in effect what he told the Detective Inspector. On the basis of what he told that Detective Inspector, was that based on theory, a hypothesis, fact, or what?
A I think that question asks me to put myself in his mind and that is hard. The information that I have is that Professor Southall’s information was what was on that television programme; that he had not had access to any of the papers; that he had not seen the results of the post-mortem on the two children; that he had not seen the results of all the investigations done on the three children; that he had not had access to all the reports of various experts and the discussions that had taken place between the experts; that he had not had access to any of the witness statements or any of the other documentation, as I understand it; he had not met or interviewed either Mr or Mrs Clark.
Q So what do you say that he went to the police with?
A I will answer that in two ways. The first is that he did not put himself in a position to give a meaningful opinion on the case, and in my view what he went with was a theory, a hypothesis, that was derived from his research data, which we have talked about, but it was a theory that was quite uninformed by the actual medical evidence in the case.
Q In your view, was the theory presented as a theory or presented as anything else?
A I do not think it was presented as a theory. I think that if it had been presented as a theory, I do not think there would have been any complaint. I cannot know that for a fact, but it was presented as a near certainty. It was presented in terms of a fact that Mr Clark had murdered both his babies and that Mr Clark represented a threat to the life of his third child, who was unsafe in his care. That is not a theory.
Q We heard the evidence yesterday of people involved in child protection and people involved in, as it were, the duty of doctors. Can you assist the Committee with your view of the appropriate role of a doctor who has child protection concerns?
A The question, I assume, refers to the reporting duty?
Q Yes.
A The simple fact is that a doctor who has a concern about the possibility that a child has been abused has a duty to report that information and to share that information with other professionals.
Q I think it was Dr Chipping who described that as a well known duty of doctors in this area. Would you accept that?
A It is perfectly simple.
Q Granted that a doctor has such a self-evident duty, what did Professor Southall do wrong in this case, in your view?
A Well my analysis is that what happened was that a theory was converted into a fact, an accusation.
Q What would have been, in your view - disregarding the suspension aspect for a moment, taking that out of the equation – the appropriate way for Professor Southall, in your view, to have advanced his concerns, if I can put it that way?
A Well, setting aside all the suspension bit, I think it would have been perfectly proper to have made a telephone call to the police saying, “Listen, have you thought of the possibility that Mr Clark suffocated one or other of these babies because I have seen three” - putting myself in his shoes here – “cases where a baby was deliberately suffocated by the mother where prior to that there was an episode when the child had collapsed and had blood coming from the nose. I think that there might be a link there and I think that blood coming from the nose could be a clue to the child having been suffocated. Have you thought of Mr Clark, because I am worried about it? I have watched this programme and the thought crossed my mind”.
Q Had Professor Southall followed that, as it were, rather particular route, if I can describe it, as you set out for the Committee, would that have been entirely appropriate?
A I think that would have been perfectly reasonable. I think it would have been reasonable if it had been made clear that, of course, he was not aware of any of the facts of the case, had not studied any of the papers and all that. I think it would have been perfectly reasonable to share a theory that one had had as a result of watching a television programme in that way.
Q As a result of the known reputation of this Doctor, in your view, would a theory, as it were put forward so confidently, been taken seriously?
A I am sure it would have been taken seriously. I mean I think that the theory had been presented by somebody who was already known to the police, as being somebody who had an interest in this area, I am sure that they would have listened carefully and would have been willing to discuss it either internally amongst the police or discuss it with their own experts to say, “Well, we have had this contact, we have had this opinion expressed, what do people think?” I do not think the inquiry would have been turned away, I think it would have been noted and acted upon and investigated.
MR TYSON: Professor, that is all I want to ask you about head of charge 5g. You have assisted the Committee in relation to head of charge 6. This maybe a convenient point where I go on to something completely different.
THE CHAIRMAN: I was having the same thoughts. I think we should stop now for lunch and we will reconvene at 2 o'clock. I probably do not need to remind you, Professor David, that you are under oath and you should not discuss your evidence with anybody else.
(The Committee adjourned for lunch)
MR TYSON: Professor David, can I explore with you a disputed issue and that is as to whether, in your view, Professor Southall was offering anything new, I put it that way? Can we start with this, please: can I take you to your care report, which is in our bundle at page 62 of C1?
A Can you give me my internal page?
Q Yes. Your internal page is page 15?
A Yes.
Q It is paragraph 30. Just to put it into context, Doctor, up until then you had (from your paragraph 14) been setting out Professor Southall’s views on nose bleeds and then from paragraph 15 you had been dealing with the timing of nose bleeds due to trauma. You have set out what the experts at the criminal trial had to say about this matter.
In paragraph 30 of your care expert’s report you say:
“In short I agree with Professor Southall that nose bleeding resulting from attempted suffocation is likely to be immediate. This was my view at the time of preparing my first report”.
Then views expressed by others. Then you say:
“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”?
A That is correct. I can add to that.
Q Yes, do add to that?
A That the notion, the possibility that Christopher’s nose bleed could have been caused as a result of his Father suffocating him, was actually very clearly outlined in my original report for the Court. I listed it actually as the first of a number of possible explanations and I also discussed the matter of timing and the notion that when
nose bleeds are caused by trauma they occur straight after the trauma, not in a delayed way. So the information that had been given, or the suggestion that had been made, actually was not new at all as it was one that had actually been included and discussed in the original report for the Court.
Q Pausing there at the moment, further on in your report (if you turn over the page to your internal page 16), you say at paragraph 31:
“There were a number of possible explanations for the nose bleeds and the possibility that it was as a result of Mr Clark, which I considered carefully, was the first on my list”,
which you told the Committee?
A Yes, that is right. That paragraph 32 is to quote, because it is a quote from my original report.
Q And 32.1, is that---
A Yes. I went on to discuss the possibility and I went on to discuss in some detail the question of whether you could have delayed symptoms, so this was ground that had all been covered.
Q Yes. We heard Mr Blomeley (the prosecutor) indicate that it was, as it were, appeared new to him. We heard Mr Mitchell (the Guardian) indicating words to the effect that he did not appreciate the significance of the nose bleed. Can you help us as to that?
A Well it is correct that those statements were made and I heard them. I think that one has to say, on behalf of those two individuals, that the quantity of material in this case was absolutely enormous. I mean the quantity of medical reports and information was huge. I think to expect somebody - in particular somebody
non-medical - to remember items like this years later, I think one needs to just take into account that gap between when these events happened and where we are now. The fact is, as you will see in paragraph 32, the possibility that Mr Clark had deliberately suffocated the baby, for whatever reason, was quite clearly flagged up actually as the very first in
a list of possibilities and the matter of timing was discussed. It is all there.
Q Can we move on to deal with the report that Professor Southall described, the document that he was asked to prepare and that we have in C1 at pages 42 (at the top) to 45. You are familiar with that report?
A Yes.
Q Professor, before we get to it in detail could you pick up the heads of charge and can we just go through heads of charge 7 together, so we see the position where we are at. You see on that it was admitted that he produced a report on the Clark family, it is admitted that at the time that Professor Southall produced the report he did not have any access to the case papers, including medical records, laboratory investigations and the like and that he had not interviewed the parents. He admits that the report concluded:
“It was extremely likely, if not certain, that Mr Clark had suffocated Christopher in the hotel room”.
He admits that the report said that he considered that he had remained convinced that the third child was unsafe in the hands of Mr Clark. He admits the report implied Mr Clark was responsible for the deaths of his two eldest children. He does not admit D, which was a matter we have already discussed. He only partly admits e:
“Your report declared that its contents were true and maybe used in a court of law, whereas it contained matters the truth of which you could not have known or did not know”.
He admits:
“Your report contained no caveat to the effect that its conclusions were based upon very limited information about the case”.
He admits that he declined to place a caveat when you suggested to him it might be appropriate. You will note, Professor David, what is alleged in respect of the report writing in the subsequent events under head of charge 8 a, b, c and d.
Can I ask you, please, to assist the Committee (and this is a matter which you have dealt with in your expert’s report to this Committee which the Committee does not have access to) and that is that I would like to have your evidence, please, Doctor, on establishing the cause of the nose bleed. I would ask you to tell the Committee, as an expert, how should an expert paediatrician establish the cause of a nose bleed. What steps need to be taken to establish the cause of the nose bleed?
A May I make reference to my report?
MR COONAN: Well, I did consent earlier to the Professor having the document by his side, as Mr Tyson indicated, and it is clearly understood that that document could be used for reference to facts and dates and information of that sort. I did not want it to be understood that I was assenting to the witness simply reading out tranches of his report to you in the light of your ruling. It may well be that Professor David is not intending to do that, but I thought I would rise in a proactive and prospective way so that we can lay down the appropriate ground rules for the next stage of the evidence.
MR TYSON: I agree with my learned friend’s observations. It is quite right, in the light of your ruling, that on this he cannot refer to his report. He has to give it from his head, as I understand your ruling. I would not have sought to do anything else. It was just those particular matters that he needed to refresh his memory on. I think my learned friend and I are agreed about the ground rules.
MR COONAN: Yes.
THE WITNESS: Thank you. I am glad I asked the question. I wanted to know if I was allowed to refresh my memory and I was not going to read anything out. The steps that you take as a Paediatrician to diagnose or establish a cause of a nosebleed come under three headings. One is taking a history. The second is examining the patient and the third is looking at any available data that you may have, whether that is laboratory reports, x-ray films, medical records or any other documentation. Those are the three basic steps that any doctor will take when arriving at a diagnosis or establishing a cause of a symptom, whether it is nosebleed or anything else.
MR TYSON: That is what a general doctor would do, if I can put it that way. Are there any additional matters that a doctor will do if one is asked to examine the cause of a nosebleed in the context of child protection?
A I think the process is the same. It is important to get hold of all the data that there is, whether it is interviewing the parents or looking at other people’s interviews of the parents. In the case of child protection the parents may have been interviewed by other doctors or social workers, police or lawyers. Again, you have got to examine the child if you could, although sometimes in a child protection case you cannot, possibly because you are considering the matter after the event and possibly because the child is no longer alive. Under those circumstances, of course, making sure that you have got every scrap of information becomes all the more important, because you are relying on other bits of information. If you cannot examine the patient and you cannot a history from the parents, then you are totally reliant on all the documentation that there is, the medical records, the statements and that sort of thing.
Q Looking at the position of Professor Southall, who has gone to the police with his theory, hypothesis, statement or whatever, as to the cause of this particular nosebleed, did Professor Southall have the opportunity of taking a history from the parents or carers of the child?
A No.
Q Did he have the opportunity of examining the child?
A No.
Q Did he have an opportunity of looking at any of the lab reports for biochemistry, haematology, toxicology and the like?
A No.
Q Did he have the opportunity of looking at x-rays and the like?
A No.
Q Did he have the opportunity of studying hospital, community and general practitioner records?
A No.
Q Did he have the opportunity of studying reports from social workers and case conference minutes?
A No.
Q Or the opportunity of studying medical reports on the child, including post mortem records?
A No.
Q Or studying medical records of the parents or carers?
A No.
Q Or studying any of the witness statements in the case?
A No.
Q Or the medical reports in the case?
A No.
Q You say that in order to establish the cause of a nosebleed you need to take the history, conduct an examination and study all the available records that are available. You have told the Committee that Professor Southall could not have done any of those things. Once you have absorbed all the information, in order to make a diagnosis what does the doctor then have to do? How does he proceed to diagnosis, having got the primary information?
A You use the information that you have obtained from the sources that we have listed and you apply them to the list that you have in your mind or written in a book of all the possible causes of the condition, so in the case of a nosebleed you would consider a list of all the possible causes of a nosebleed. You might call that a differential diagnosis. You would use the information that you had got about the history, about the examination findings, about all the material in the records and the laboratory results and you would go through the list of your differential diagnosis and you would say to yourself, “Could cause X be relevant here? Yes or no.” You would go through the list excluding those that you can exclude and leaving in those that you leave in. You are looking for both the positive and negative pointers towards a particular diagnosis. It is a bit mechanical and you do not consciously necessarily go through every item on the list. That is a description of the process.
Q In relation to your reading of the report and your discussion with Professor Southall, is there any evidence that you are aware of that Professor Southall conducted any kind of differential diagnosis in this case?
A My understanding is that he did consider one cause for nosebleeds in Christopher other than suffocation and that was a possibility as to whether Christopher had some sort of underlying disorder that interfered with the ability of his blood to clot. There is reference to that in a number of places. The word “leukaemia” is mentioned, but the context of that was that the exam question: could the nosebleed have been caused by some disorder that interfered with the ability of the blood to clot? It was clear that that had been considered and, as far as Professor Southall was concerned, although he did not have any access to any of the data he came to the conclusion that those conditions could all be excluded. There is no evidence that any of the other possible causes were considered, but, of course, it is a mental process, so you do not necessarily say out loud all the conditions you have though of.
Q For the benefit of lay members of the Committee, you said that one of the causes of a nosebleed could be an underlying disorder interfering with the blood’s ability to clot?
A Correct.
Q For the benefit of lay members, what are the other possible causes of a nosebleed that should be considered, whether mentally or otherwise?
A There are many other possible causes. One can have infections. You can have minor viral infections causing a nosebleed. That is pretty common and in most people’s experience when they get a cold they can get a nosebleed. That must be very common. There are more serious infections, but they are mostly trivial infections that cause nosebleeds. There are foreign bodies. Children can put objects into various orifices, including their noses. This baby was too young for that sort of behaviour, but it is a possibility. People can push foreign bodies into somebody’s nose. There are a number of conditions that can cause nose bleeding, conditions that affect the lungs. Then there is trauma. In children, in general, trauma is a very common cause of nose bleeding, either from a blow to the nose or, probably much more commonly, just from nose picking. That is something that all children do. Babies of this age, although they can scratch their face and they can do things with their fingers, they do not generally poke their noses at this age. That is a selection. It is not an exhaustive list, but those are the sort of things. At the bottom of that list – it does not have to be at the bottom, but in the list one of the causes, one of the forms of trauma, is deliberate suffocation. It is something that one has to consider.
Q Do you criticise Professor Southall in any way for jumping to what you describe as down at the bottom at the list and, if so, why?
A I do not criticise for it being considered, because it is one of the possible causes. The difficulty that Professor Southall had was that he was not in any position to consider the causes of the child’s nosebleed because he did not have any access to any of the paper work, any of the records, any of the reports, he had not seen the child and he had not interviewed the parents. He was not in a position to express a professional opinion as to what the cause of the nosebleed was. His opinion really was crippled by a lack of any relevant information.
Q Can we turn to a related issue? Could I ask you to look at the report of Professor Southall? I wish to examine with you the phrase that we have at the top of our page 44,
“Christopher suffered an ALTE with bleeding from both nostrils ten days before he died.”
The second proposition I want to discuss with you is,
“ALTEs which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research.”
We come to the issue now where the Committee have to consider what is an apparent life-threatening event. Are there a number of definitions in the books as to what is an apparent life-threatening event?
A There are.
Q I was wondering whether my learned friend would permit the doctor to pick up the different definitions. I can take him to the medical literature if necessary.
MR COONAN: To help my learned friend I have absolutely no problem, if it is simple library exercise. I have no difficulty with that.
MR TYSON: I am obliged.
MR COONAN: Save in respect of any conclusions to be drawn from the literature. Of course that is a different matter.
MR TYSON: I just want to take him to the literature and the different definitions. (To the witness) Was there a definition in 1986 made by the National Institutes of Health Consensus Panel on Infantile Apnoea?
A Yes.
Q Can we find that definition in tab 6 of C4 in the Pitetti paper?
A Yes, page 118 of the bundle. In the second column following the abstract and the summary there is some text there which explains what that definition of an ALTE is.
Q Where is says right at the beginning of the article,
“Apparent life-threatening events as defined by the 1986 National Institutes of Health Consensus Panel on Infantile Apnoea are events that are characterised by some combination of apnoea, colour change, marked change in muscle tone, choking or gagging and that are frightening to the observer.”
A That is right.
Q For the assistance of lay members of the Committee can you help as to apnoea?
A Apnoea means stopping breathing.
Q Later in 1991 did Burchfield and Rawlings in a paper they have published indicate in that paper what their view was of an apparent life-threatening event?
A Yes.
Q Can you assist the Committee as to that?
A They did not define the term, but the indicated that this was something that was plainly life-threatening to the extent that ten patients needed artificial ventilation and five died. It was a very selected sample of cases.
Q In 1991 did a doctor called Dr Patrick Rahilly provide a description apparent life-threatening events?
A He did.
Q Do we have that definition in the documentation at page 130. What does Rahilly say about apparent life-threatening event?
A If I can read from his paper in the bundle, it is in the left hand column of page 130,
“Apparent life-threatening episodes (ALTE) also known as ‘near miss’ sudden infant death syndrome, remain a source of concern and confusion to parents and paediatricians alike. The diagnostic criteria are very vague and the link with the sudden infant death syndrome (SIDS) is uncertain. The confusion may be caused in part by the fact that the diagnosis of ALTE leads to treatment which in turn can change the natural history of the condition. However, of the first 141 parents we interviewed after loss of a baby from SIDS 12, 8.8 per cent reported that in the week or so before death the baby suffered an apnoeic episode considered to be significant.”
It is not a definition but it is his explanation, and there is more text that explains it.
Q Is an apnoeic episode considered to be significant?
A Yes.
Q Dr Susan Beal also produced a definition in 1992 and we find her article at page 136?
A Yes. Do you want to read out her definition?
Q Could you just help us as to where we can find it?
A Page 136 of the bundle. When you have got to page 136, it is the left-hand column. If you go to the second paragraph and the second sentence, it reads:
“Unexpected episodes in infancy of collapse with apnoea, cyanosis and pallor, and unresponsiveness are now commonly referred to as apparent life threatening events (ALTE). When no cause for such events can be identified, they are often referred to as near-SIDS or near-miss SIDS.”
Q In a paper to which Professor Southall was one of the authors in the BMJ, was there another definition of an ALTE, and was that the Samuels, Poets, Noyes, Hartmann, Hewertson and Southall paper, which we can see on page 142?
A Yes. If you go to page 142 and stay in the left-hand column and go below the bold bit, which is the Abstract, near the bottom of the left-hand column there is a heading “Introduction”, and the authors there have said:
“An apparent life threatening event has been defined as ‘an episode that is frightening to the observer and that is characterised by some combination of apnea (central or occasionally obstructive) color change (usually cyanotic or pallid), marked change in muscle tone, choking or gagging’.”
Q Was there a study called the CESDI, which stands for Confidential Enquiry for Stillbirths and Deaths in Infancy Study”, and did they ask some questions that sought to elicit whether there had been an apparent life threatening event?
A Yes. They did not provide an actual definition but they asked parents two questions.
Q Do we see where that is?
A This is a book. It could take a little while to find the actual source of this.
Q We see that it starts at page 148. It runs from page 146 to 316. Never mind, you say that they asked two questions in order to elicit what an ALTE was. What were the two questions?
MR COONAN: I think you may find it on page 207. It is only a suggestion.
MR TYSON: Thank you. It is a very helpful suggestion.
THE WITNESS: Page 207 in the bundle, that is absolutely correct. About a third of the way down the page there is a heading, “Apparent life-threatening event” and the text reads:
“Two questions were asked to ascertain whether any of the infants had ever experienced an apparent life-threatening event:
Parents were asked whether the infant had ever had an episode in which he or she became lifeless?
Parents were asked whether the infant had ever had ‘any form of convulsion, fit, seizure or other turn in which consciousness was lost or any part of the body made abnormal movements’?”
Those were the two questions.
Q In a paper in 2002 by Pitetti, Maffei, Chang, Hickey, Berger and Pierce, did they use the definition that is the National Institute of Health definition, which we have already looked at and found at page 118?
A Yes.
Q The question is this: bearing in mind the various definitions of an ALTE, would what was described as happening to Christopher in the hotel room fit all the definitions of an ALTE?
A No.
Q What is the problem about what was recorded as happening to Christopher in the hotel room as far as the definition of that being an ALTE is concerned?
A He had parts of it. He had difficulty breathing and he had choking, but he did not have apnoea; he did not stop breathing, which is clearly an important feature in some of the definitions. So what happened to Christopher would have earned him the label “ALTE” by some of these studies, but by others it would not have done.
Q Was there any report of colour change in Christopher?
A No.
Q Was there any report of loss of consciousness in Christopher?
A No.
Q Was there any report of unresponsiveness in Christopher?
A No.
Q Was there any report of change of muscle tone in Christopher?
A No.
Q In the light of the definitions that we have been through, which sources of definition would he not have passed? Would he have passed the two CESDI questions?
A No, he would not have got into that.
Q Would he have got into the Burchfield and Rawlings study?
A No.
Q Would he have got into the Rahilly study?
A No.
Q Would he have got into the Beal study?
A No.
Q Going back to the report of Professor Southall to you at page 44 of C1, the second proposition that I want you to give the Committee your views on is the second line, where he said:
“ALTEs which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research.”
You have told us about Professor Southall’s research. Do you have any views about whether or not that statement requires qualification in any way?
A I cannot think of any way of qualifying it. The problem with it is that it is faulty. I can explain that.
Q Why do you say that that statement is faulty?
A It is a simple statement. It says that ALTEs that are accompanied by bleeding from the nose or mouth are due to intentional suffocation.
Q As a use of English, we can see that it is not qualified in any way there?
A The problem is that the research data that has been obtained and is referred to in the study cannot be used to draw that conclusion. The study to which we made reference was a sample of 39 very carefully selected patients, children who were selected on the basis that there was a very high level of concern that the attacks that they were having were caused by suffocation. The level of concern was such that they were referred to the unit at Stoke-on-Trent for the purposes of in particular covert video surveillance, and indeed that tool confirmed in 30 of the 39 cases that the child was being intentionally suffocated.
Now we know that in three of those cases there was a report that previous apparent
life-threatening events had been accompanied by nose bleeding, but we have to be very careful how we interpret that data because you have to remember that those patients were very highly selected in the first place, so we cannot say, on the basis of those three patients, that if you have an ALTE and you have bleeding from the nose or mouth, it must be due to suffocation, because you have selected your patients on the basis either that they had been suffocated or that they were very likely to have been suffocated in the first place. So the fault that has been made is a generalisation. The findings in this selected sample have been applied in a general way in this instance to this particular baby. The flaw is that what this statement has failed to do is take into account all the other patients who have ALTEs, some of whom may well have nose bleeds. That is the flaw or the fault of generalising from a very highly selected sample. It is an error.
Q That relates to the research on ALTEs. If you are going to establish the cause of death as opposed to the cause of an ALTE, what should a prudent paediatrician or indeed doctor do?
A You would start with the history about events leading up to the child’s death, all the background medical information, if there is any, details about the child’s delivery, family history, the type of feeding. Information, taking a history, is one component. The next component is exactly the same as the three things that I have said already – it is examining the patient. Now obviously the way you examine a patient who has died is at a post-mortem, so information about findings at post-mortem will be critical to determining what has caused the death. The third item is all the other information that you can get, such as laboratory results, x-ray results and all the other information that you might get from the medical records or from the laboratory.
Q In relation to the answers that you have already given to the Committee, it is clear that Professor Southall did not have the history, that he had not seen the post-mortem reports and that he did not have any of the laboratory reports or any of the documentation relating to the case?
A My understanding is that the only information he would have had about the history is that which was contained in the television programme and my understanding is that he did not have access to the other items that were listed just now.
Q On that basis, or lack of basis, for a doctor to conclude that both children had been suffocated, leading to death, and that the suffocator was Stephen Clark, how valid and proper is it to come to such a conclusion based on such limited information?
A Professor Southall had not put himself in a position to provide a medical opinion about the cause of death of Christopher Clark. One can use various adjectives to describe that, but that was the fundamental flaw. He arrived at a conclusion without all this data, and yet the conclusion was put in very, very concrete terms, namely, beyond all reasonable doubt. There was no expression of doubt at all. I am not sure whether that is totally true, but the term “beyond all reasonable doubt” implies a very considerable degree of certainty.
MR COONAN: There is just one small point. I understood my learned friend to be referring to the report. It may well be that Professor David does not understand him to be referring to that, but that phrase does not appear in the report.
MR TYSON: I, of course, accept that.
MR COONAN: I simply rise not to be mischievous but because there are many other people listening to the evidence.
MR TYSON: Yes. It did not arise from the report but it did arise later on in the faxed
e-mail.
MR COONAN: Yes.
MR TYSON: Professor David, can we look at page 45 and the last line, where he says that he declares that the contents of the report are true and that they may be used in a court of law? In your opinion, are there matters in that report there set out the truth of which Professor Southall could not have known or did not know?
A Yes.
Q In your opinion, what are those matters, the truth of which he did not know or could not have known?
A The statement refers really to almost all the medical information that has been provided.
Q Perhaps, just for the benefit of the Committee---
A All right.
Q --if we start - if we go through that---
A If we take the list---
Q --and highlight matters, the truth of which he did not know or could not have known by reference to the report?
A If we start with, “Other issues”, we have got reference to two petechial haemorrhages---
Q You have got to help the Committee by---
A I am sorry.
Q --giving a reference?
A I am on page 44. Two-thirds of the way down the page we have got a list of other issues.
Q Yes?
A It says:
“I note there were two petechial haemorrhages found on Harry’s eyelid after death”.
Without seeing the post mortem report he could not have known any of the details about them. The second item.
Q Yes?
A Number 2, the torn frenulum.
Q Yes?
A The first fact is that again Professor Southall did not have access to the medical records or the post mortem report or the photographs that were taken of this injury.
He has made reference in this paragraph to the likelihood or otherwise of the frenulum having been torn by resuscitation, he has made reference to his own experience in intensive care but he has actually disagreed with the view expressed by the
Consultant Paediatrician who was present at the time the child was being resuscitated.
He had no information about the condition of the child, he had no information about the particular difficulties that existed in intubating this particular child but nevertheless this has been declared as true.
Q I am aware it relates to matters in other medical reports, but with a, “Yes”, or, “No”, answer; were there any particular difficulties in intubating this particular child?
A There were major difficulties.
Q Are there other matters of the truth of which he could not have known, or did not know, which you would like to raise with the Committee, Professor?
A We have got, if we go up the same page, page 44?
Q Yes?
A Item 5. There is a statement here about fresh blood in Christopher’s lungs.
He could not have known about that without looking at the various post-mortem reports and other witness statements that have been produced. The same comment applies again in item 5, about there being old blood in Christopher’s lungs. These were both actually very complex issues where the observations of different pathologists were different. There was an immense amount of paperwork concerning these two possibilities with conflicting opinions, with one expert changing his opinion half-way through from there being absolutely no fresh blood to being, yes, there is fresh blood. Professor Southall cannot have known about that because he did not have access to the papers.
Q Four matters that you have brought to our attention. Are there any other matters that you---
A Yes. We have to go back a page.
Q Yes?
A Page 43. If we go to the second bullet point it says:
“The first death was initially attributed to a lower respiratory tract infection”.
That was, I think, mentioned on the television programme, but Professor Southall did not have access to the reports or data.
This bullet point goes on and says:
“But later there was reported to be a torn frenulum and some possible bruises at the time of death”.
That statement is wrong. The torn frenulum and the possible bruises were reported at the time of the original post mortem at the time the respiratory tract infection was documented. As to the possible bruises, they were not present at the time of death. There was a lot of evidence that the baby had been examined at the time of death by a number of doctors who had found no bruises and after death the baby had been examined by a policeman who found no bruises. This statement is factually wrong and, in answer to the question, there is no way that one could declare that information to be true when one had not had access to the paperwork.
Q Any other areas about which you wish to highlight?
A The next bullet point:
“The second death was initially reported to be a consequence of the shaken baby syndrome with evidence of a rib fracture and possibly injuries to the brain, spinal cord and eyes”.
Again, there was no way that Professor Southall could know about those injuries other than the information on the television programme. The dispute was not about one rib fracture as there were actually two ribs involved.
Q Yes?
A The next bullet point is:
“I noted that Harry was on a breathing monitor at home”.
Again that was information from, I assume, the television programme. Actually that in itself was a huge topic about when a monitor was and was not used and whether it worked or did not work and whether it was faulty or not faulty. Actually that was the subject of its own work and expert examination. Again there had been no access to the relevant paperwork and the only information was the television programme.
Q Anything on the next bullet point?
A No. I think - I mean the rest of it is really circumstantial information. I mean, I say the same comments apply but I was really sticking to medical science. The point was that it was impossible to declare that these things were true when one had not had access to the post mortem reports or the papers or anything else.
Q In relation to the cause of death being here put down due to suffocation, obviously due to Mr Clark because of his causation of an ALTE some few days earlier, were there other causes and other medical information apart from, as it were, the Southall view discussed either in your report or in the trial generally?
A Which of my reports are you referring to?
Q The first report that you dealt with on the possible causes of the death of these two infants?
A My original report considered all the pathological findings, in which there were numerous abnormalities in all three children. I considered each and every one, first of all, as to whether they were actually present or not because a number of abnormalities that were supposed to be present quite plainly were not present so that was the first thing that I had to consider. As an example of that, the Home Office pathologist who did the post mortem on Harry said that there were contusional tears in the brain, which was of great importance. Actually when the brain was looked at by two neuropathologists they found that there were no contusional tears, that the only tears in the brain were actually caused by the post mortem itself. The same applied to the retinal haemorrhages, which were particularly important and a great deal of emphasis was placed on them, but a number of experts looked at the eyes and found, contrary to the claims of the Home Office pathologist, that there were no retinal haemorrhages in the eyes.
Q So---
A So the first bit of my report looked at the various abnormalities that had been described and asked the question: were these abnormalities actually present or not, what is the evidence that these abnormalities existed? For example, in the case of the torn frenulum, which had been reported, there was a photograph of the torn frenulum and the problem was that the photograph did not show a tear of the frenulum. So, it was necessary to consider, before looking at the causes of these things, whether these abnormalities existed. That was the first bit of the report.
Q Perhaps I can slightly speed this up?
A I am sorry.
Q Did your report consider other options for the cause of death or the difficulties with all three children?
A It did. It considered all the possible causes of all the abnormalities.
Q Can I turn to another discrete area and that is, for want of one word, the use of the word, the use of “Caveats”? Can I deal with it in two ways, please, with you, Professor? First of all, the use of caveats in clinical research publications and, secondly, the use of caveats in medico-legal work. We have heard, and we know from his CV, that
Professor Southall has written a considerable amount of papers in the academic press?
A That is correct.
Q As a writer/reporter of research in the academic press, is there any particular understanding as to what you do about any possible limitations in your research?
A Yes, there is. There is a duty, when reporting one’s research or one’s research findings when you are writing a paper for publication, on the authors who have done the work to list the limitations either of their methods or of the results. No bit of research is perfect; there are always problems. It is important to highlight any limitations really for two reasons: one is that the people who are closest to the research know what the limitations are of their own work best and, secondly, is the defensive reason that it is probably better for you to point out any flaws in your study rather than waiting for somebody else to pounce on you.
Q Immortalised in the phrase, “Getting your retaliation in first”?
A No, I would not use that phrase but---
Q I apologise.
A It is not retaliation. It is just being honest. It is being up front and saying, “Look, this was the work we did, we think it is good work but we have to admit that there are a few limitations here and you have to be a bit careful interpreting this data because”, or whatever.
Q For instance in the literature that you have attached to your expert report, are there any examples we can see (just from these bits of literature that you have produced for another purpose) of any such limitations?
A Yes. If you go to page 123?
Q Is this the Pitetti paper that begins at 118?
A Absolutely right. If we start at 118 the layout is fairly straightforward. You start with an abstract (a summary of the paper), then you have got what is called an, “Introduction” (although the word, “Introduction”, is not written here), then if you go over the page to 119 you have got, “Methods”, that describe what the authors did. The next heading is, “Results”, that describes the results that were attained. Go over the page to 121 and you get to the, “Discussion” and in the discussion what the authors do is to discuss what they found, give their views as to how it relates to other work, what its importance is. Then, in this case at the end on page 123, they give a warning about how the data should or should not be interpreted. They say,
“Results of this study may not be generalisable to other institutions in regard to the demographic characteristics of the study population.”
Then they give another warning,
“In addition, the study was performed at an academic centre with ready access to a paediatric ophthalmologist. All but 2 funduscopic examinations…”
That means looking at the retina,
“…were performed by a paediatric ophthalmologist. To be useful as a screening test for occult abuse, the funduscopic examination would have to be performed by ED physicians…”
That means Emergency Department physicians,
“…who may not be proficient as an ophthalmologist. However, most emergency physicians are familiar with the procedure and perform it with some regularity to identify evidence of haemorrhage.”
That is a warning to the reader to say, “Be careful how you interpret this data. There are some limitations to what we have done. Just watch out.”
Q Are there any other examples here, for instance, in the CESDI book of a limitation?
A Yes.
Q Perhaps one should look at page 269?
A Page 269 is part of this CESDI report, which is a research study into sudden and unexpected deaths. You can see on page 269 halfway down the page there is a paragraph which lists limitations of the inquiry. Do you want me to read it out?
Q No?
A It quite clearly gives a warning to the reader about limitations.
Q Does Professor Southall himself indicate possible limitations to his research work in his own report in “Paediatrics”?
A Yes.
Q If we look at page 327?
A You made me read it out earlier. It is the footnote at the bottom of the table,
“The number of ALTE reported refers to information received from the parents and must be considered with caution.”
That was a cautionary note. It then goes on, as I have read out previously, and it does what one does with a limitation, which is, having flagged up the problem, it then discusses to what extent it really is a problem or not.
Q What lawyers would call confessing and avoiding. In relation to medico-legal work, has there been advice to paediatricians based on the legal cases as to matters which should or should not be included in medico-legal reports?
A There are a number of pretty stern warnings given about what one is expected to do when one is writing a report.
Q As far as paediatricians are concerned, is there a publication called “The Archive of Diseases in Childhood”?
A Yes.
Q What is the status of that publication as far as paediatricians are concerned?
A It is the major paediatric journal published in Britain. It comes out once a month and it is sent to every paediatrician in Britain, not just Consultants, but also many paediatricians who are in training because virtually all Consultants and many trainees are members of the Royal College of Paediatricians and Child Health. One of the benefits of membership is that you get a copy of this journal free, so as well as being a major paediatric journal in Britain, it is sent to every single paediatrician in Britain and to many others around the world.
Q Could we look at tab 6 of C4, i.e. the publications of the articles, at page 345? It is difficult to read. It is in manuscript. It may assist the Committee if they were to put a Post-it on this article. Is this an article entitled “Expert evidence in case of child abuse”, reported in “The Archives of Disease in Childhood” in 1993?
A Yes.
Q Is it a report by Catherine Williams who appears to be a lawyer from the University of Sheffield giving advice to paediatricians under the general title “Medicine and the Law”?
A Yes. I do not know for a fact that she is a lawyer, but apart from that I agree with what has been said.
Q Perhaps it is my wrong conclusion. The fact that she is in the Faculty of Law would make me assume that she was a lawyer?
A I just do not know what her status is.
Q Did that give advice to paediatricians in the light of a decision of Mr Justice Cazalet in a case that in the first line the author describes as Re R?
A That is right.
Q Did the author distil the guidance into three basic propositions at the bottom of the right hand side column on the first page under the guidelines?
A That is correct.
Q As (a) did the author say that experts should provide a straightforward, not a misleading opinion. (b) be objective and not omit factors which do not support their opinion and © be properly researched?
A That is right.
Q Did the author then deal with (a), (b) and © under individual sub-heads in the course of the article, the guidelines considered, as we see, over the page at 713 internally, that the experts should provide a straightforward and not misleading opinion?
A Yes.
Q Did the author then on the next page deal under (b) say that experts should be objective and not omit factors which do not support their opinion?
A That is right.
Q Under © did she give some advice that experts should be properly researched?
A Correct.
Q In that section © did the author say this,
“In saying experts should be properly researched Mr Justice Cazalet was not addressing his mind to the issue that an expert should be well read and have kept up with current medical literature, although this is obviously expected of all experts. Rather he was closely allying this requirement to the other two requirements and looking at the issue of researching the particular individual case. Experts are routinely instructed by one of the parties to a case. This may well lead to them being presented with very different basic information from that given to an expert instructed by the other side. But this does not mean that experts should proceed to give an opinion without reference to their source of information. Experts should always be alert to the fact that the information provided may have been selective. If experts feel that their opinion is not properly research as they suspect that they are being given insufficient data, then their duty is to say so and to indicate that as a result the opinion can be no more than a provisional one.”
A That is what is says.
Q To people of the eminence of yourself and Professor Southall, can that guidance be regarded as well known amongst medico-legal experts in the field of child abuse?
A That is a very difficult question. You could not rephrase the question, because it asked how well it was known. Is that correct?
Q Deal with the question in the way you wish to deal with it, irrespective of the inelegant way I phrased it?
A The judgment that is referred to followed a particularly disastrous child protection case where a number of experts made some errors that caused the Judge to publish in open Court a judgment which actually was quite fiercely critical of the individuals concerned and spelled out exactly what the Judge thought had gone wrong. He went much further and he listed some clear recommendations as to how experts should behave when preparing reports. This article set it out for the benefit of any paediatrician who did not know about it. There are a number of other sources, one of which I have referred to in my report, that have repeated and expanded on this really pretty basic advice.
Q You describe it as pretty basic advice?
A It really is. It has been repeated in all sorts of places.
Q Was it repeated in a handbook prepared by Nicholas Wall, who is a Family Division Judge of the Northern Circuit?
A He was when he wrote the book. He is a Court of Appeal Judge now. Yes, he did.
Q Do you give copies of that handbook at page 348 onwards?
A I personally did not, but they are there.
Q Was this book current at the time when Professor Southall produced his report?
A It was published in 2000.
Q We can see at page 348?
A I have not fully answered your question, because I said it has been published in 2000. I am looking at the title page of the book, which is on page 350 of the bundle. Of course, it does not say when it was published. I have got Professor Southall’s report in front of me and that was on 30 August 2000, so to be fair I cannot say whether this book as published before or after Professor Southall’s report.
Q We can see that an introduction was made by Mr Justice Wall beginning on page 352 and ending on page 354 on which a date was given?
A Yes, that is correct.
Q As March. We can see some acknowledgements on page 355, again the same date as March?
A Yes.
Q Is it right that amongst the people acknowledged by the learned Judge in producing this book was yourself?
A That is correct.
Q We can see that in the second paragraph of the list of acknowledgements?
A That is right.
Q Amongst the advice there given to expert witnesses in childcare cases can we briefly deal with some? Can we pick it up at page 367 at chapter three and at paragraph 3.7? Would you like to comment on that to the Committee as an indication of the importance of expert witnesses and their professional and intellectual integrity?
A The heading of the chapter is “The Respective Roles of Expert and Judge: Why the Professional Integrity of Experts is so Important.” 3.7 stresses that the Court depends on the skill, knowledge and, above all, the professional and intellectual integrity of expert witnesses. The Judge is saying that Judges have a difficult enough job as it is and they are therefore relying very much on the integrity and professionalism of experts.
Q Under chapter four on page 370 is that headed “The General Duties of Experts”. At 4.2 (5) is the matter that Williams wrote about in the archive article there raised?
A Yes. It is a repetition. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. It is very similar wording to the wording of the original judgment and the Williams article.
Q It all derives from the same source which is a legal case known as The Ikarian Reefer SEE END NOTE…as shown in 4.1. If you turn over the page at 371, “Particular duties in family proceedings”, again this is the same pointed repeated from Re R. We see at (5) the point about putting in a caveat if you have not got the full facts?
A That is right.
Q Do we also note at (4), that if experts look for and report on factors which tend to support a particular proposition or case, their report should still provide a straightforward and not misleading opinion, be objective and not omit factors which do not support their opinion and be properly researched?
A Yes, and that is repeated in the summary in 4.7 on the next page.
Q The summary in the box?
A Yes.
“What the Court expects from you is an objective, independent, well-researched, thorough opinion which takes account of all relevant information…”
all relevant information,
“…and which represents your genuine professional view on the issues submitted to you.”
Q Finally, in this book do you draw attention in chapter 9 to your enquiries?
A We have skipped a bit.
Q I am aware that we have skipped a bit, but can we skip, because there is a lot of meat in this report, but just finally can I take you to that page and the summary in the box as to the enquiries to be made by a medico-legal expert?
A Yes.
Q We have looked at the limitations and how they should be expressed in research work and the need for limitations, if there are any, in medico-legal work. Can we then turn to the report produced by Professor Southall in this case? We have seen, because he has admitted head of charge 7, that the report contained no caveat to the effect that its conclusions were based on very little information about the case held by him. He has admitted that. Were you surprised or did you have any other emotion when you read this report, which effectively, as we have seen from the court order, was for you, to note that there was no caveat in it?
A Let’s leave emotions out of it. It was unprecedented in my experience to see a report in a child protection case which openly concluded that a man had murdered two children without mentioning that actually the author of that report had not had access to any of the relevant data at all, had not had access to the post-mortem reports or the witness statements or any of the paperwork or expert reports. I have never come across such a situation before.
Q You regard it as unprecedented and you had not come across it before. In your opinion, was it any kind of error on the part of Professor Southall not to put any caveat or reservation on it?
A I thought that it was a serious error, which is why I flagged it up, because I wanted to help a colleague from making what I think was a serious mistake.
Q You flagged it up. Could you look please at bundle C1 and page 46? Is that the
e-mail that you sent to Professor Southall?
A Yes, it is.
Q What was your purpose in sending it?
A I guess I wanted to do two things. First, I wanted to make sure that when I produced my report I fairly and accurately represented Professor Southall’s opinions, but I did want to give him an opportunity to protect himself from criticism, because by producing a report without acknowledging any limitations was obviously going to lay him open to criticism and I was keen to help protect him from that. I mean we all make mistakes, including me, and my final sentence says:
“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.”
Q As a result of that e-mail, was there then a telephone conversation between you and Professor Southall?
A Yes.
Q For the benefit of the Committee, do you set out what happened in the course of that telephone conversation at page 80 of C1, paragraph 66?
A Yes.
Q As we can see from that, did you in the course of that telephone conversation reiterate to him that there was an enormous amount of data that involved a considerable number of experts, and did you try to hypothesise situations that could have invalidated his conclusions?
A I did. I stressed the enormous amount of data that existed, I stressed the remarkable number of experts and I tried to hypothesise situations that might invalidate his conclusions. The one that I have documented giving was that I said, “Supposing
Mrs Clark gives a detailed confession of how she murdered both babies, including details that could not possibly have been made up, indicating quite clearly that she had killed both children, would you still feel the same way?” So I put it in those terms.
Q Can you recall what the answer was to your hypothesis?
A The answer was in writing.
Q No, on the telephone, when you suggested that ---
A I cannot recall whether anything else was said on the phone other than what is in the e-mail that came in reply.
Q Or what is in paragraph 66?
A Yes.
Q Did you get an e-mail in reply, which we can see at page 47?
A Yes.
Q In relation to that e-mail, did it accept that there may be a need to express caution in his original report?
A If anything, it was rather the reverse. The e-mail said:
“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 Clark killed the two children.”
He then goes on to report that he had undertaken a number of discussions with people after seeing the video, in particular Mr Gardner the policeman, the guardian, Mr Mitchell and the social worker, and he had asked questions of them about other possible but, in his words, “extremely unlikely mechanisms” for the bleeding and the scenarios which would enable rejection of his opinion, and he reports that he got negative answers to those questions.
Q Just pausing there a moment, are any of the people there mentioned medical people?
A No.
Q Carry on.
A He goes on to say:
“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 programme, also any other information relating to the case that made Mr Clark’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.”
Q Carry on, please.
A He went on:
“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 Clark was responsible. 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.”
Q In the context of the charges that Professor Southall is facing before this Committee, what was your reaction to the opinion of that e-mail?
A First of all, I was surprised that there was a complete unwillingness to take on board the whole concept that there was a mass of information which was bound to be relevant to the cause of death of these children. I found it very, very hard to believe that my e-mail had had the reverse effect to the one that I had anticipated; that, instead of leading to some note of caution, it in fact led to a hardening up of the position and reference to the term “beyond reasonable doubt”, which has such a strong meaning.
I thought that the response was unreasonable.
MR TYSON: If you wait there, you may be asked some other questions.
THE CHAIRMAN: Mr Tyson, is that the end of your examination?
MR TYSON: Yes, sir.
THE CHAIRMAN: I think that we should take a break and this would seem to be an appropriate moment.
MR COONAN: Sir, could I just mention another matter? I have actually canvassed with my learned friend and I have also alerted your learned Legal Assessor to it. In the light of the rather complex matters that you have been hearing about, I think that it would be beneficial to the Committee if I were to have some time to discuss with my client the matters that we have heard about today. What I am suggesting is that it would be enormously helpful to me not to begin my cross-examination this afternoon, if we could have a clean start tomorrow.
THE CHAIRMAN: If that is what you wish, I am content with that. In that case, we will call an end to today’s proceedings and start again at 9.30 tomorrow morning.
MR COONAN: Could I have a very quick word with my instructing solicitor about the start time?
THE CHAIRMAN: Yes, of course. (Short pause)
MR COONAN: Sir, I wonder if I could prevail on the indulgence of the Committee to contemplate sitting at 11 o’clock tomorrow. There are one or two logistical difficulties.
I can promise you that the time will be extremely well spent and that I am bound to be shorter in my cross-examination if I am allowed that time.
THE CHAIRMAN: I am willing to agree to that, if pushed, but I am beginning to be concerned about whether the amount of time that we have available for this case will allow us to conclude it in time.
MR COONAN: Sir, I can only repeat what I have just said, that I think my
cross-examination will be shorter.
THE CHAIRMAN: Very well, unless Mr Tyson objects.
MR TYSON: Sir, I have no objection to what my learned friend seeks to do on behalf of his client. I am not in a position to nor do I seek to make any objection, but I rise simply on the matter of the logistics for the timing of this hearing, which is causing our side some considerable concern. Though, as I think I have said before, one can never trust time estimates given by any barrister, it is my view that we cannot complete this case in the time currently allotted to it. I do not know how many witnesses my learned friend will call and I do not even know whether he will call his client. On the assumption that he finishes his cross-examination of Professor David and that you and your Committee Members want to ask some questions, the likelihood appears to be that Professor David will probably take up most of tomorrow. That means that we will have reached Friday, when Professor Southall, if he is called, will take most of the day, and there may, of course, be other witnesses. We would then have closing submissions and I anticipate that Monday and part of Tuesday will be taken up with part 1. I do not want to make any assumptions as to whether or not there will be a part 2, but, if there is, we simply shall not have time for it.
THE CHAIRMAN: I understand that, but I think that above all we must have a process that is fair to Professor Southall.
MR TYSON: Indeed. I am just making an observation. I am not objecting.
THE CHAIRMAN: Yes, I understand. I do not know whether it is possible for you and Mr Coonan to have some discussion before we meet again and come up with an estimate of what the timing is likely to be, and then we can begin to think ahead as to how we might proceed after that. It has become increasingly clear to me that we may struggle to get through the case in the time available.
MR TYSON: Yes.
THE CHAIRMAN: Mr Coonan, I will agree to your request that we do not meet again until 11 o’clock tomorrow morning, when we will resume with the cross-examination of Professor David, and I remind you, Professor David, that you are still under oath and therefore should not discuss your evidence with anyone else.
(The Committee adjourned until 11 a.m. the following day)