HL Deb 06 February 2003 vol 644 cc366-8

3.15 p.m.

Lord Mitchell

I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interest as a friend of Mrs Clark's father.

The Question was as follows:

To ask Her Majesty's Government whether, following the release of Sally Clark from prison, they have any plans to review the giving of evidence by expert witnesses.

The Minister of State, Home Office (Lord Falconer of Thoroton)

My Lords, this has been a tragic case and one over which Sally Clark and her family have every right to feel seriously let down by the criminal justice system. We need to look carefully at the detailed written judgment from the Court of Appeal, once we have received it, to determine what lessons can be learnt from this case with regard to those called to give expert evidence in other cases.

In the light of that, we need to examine existing procedures and, where necessary, take steps to strengthen them to ensure that in future we have confidence in how the evidence of specialist witnesses is presented and tested in the courts. In particular we need to be certain that the independence of such witnesses can be relied on.

Lord Mitchell

My Lords, I thank my noble and learned friend on the Front Bench for that helpful Answer. Sally Clark was convicted and sentenced to 15 years' imprisonment for the double murder of her two sons. At her trial the testimony of two eminent witnesses sealed her fate.

The first stated that the chances of two cot deaths in any family were one in 73 million, a powerful number that was simply wrong. The second, a pathologist, testified that the second birth—

Noble Lords


A noble Lord

Leave him alone.

Lord Mitchell

The second witness, a pathologist, testified that the second baby was healthy when he died, whereas recent and reluctantly released evidence now shows that the baby was fatally infected.

Mrs Clark was lucky in that she was a solicitor—

Noble Lords


Lord Mitchell

My Lords, I shall come to my question. What of those currently in prison, serving sentences for similar crimes; namely, where the prosecution has used identical expert witnesses, but who do not know how the system operates? Where is their justice?

Lord Falconer of Thoroton

My Lords, the Court of Appeal has decided that the conviction was unsafe on the basis that the original court was deprived of the opportunity to hear important medical evidence which the Court of Appeal stated might have affected the result. The court has not yet produced a detailed judgment. We need to consider the detailed judgment to see whether lessons need to be learnt from it. Furthermore, on the basis of that judgment, we need to examine what steps need to be taken. My noble friend has raised an extremely serious matter.

Lord Neill of Bladen

My Lords, when the Government address the questions that have arisen from this case, will they look also at the delay? Last summer the defence finally took possession of the medical examination reports and asked the prosecution to agree that the conviction must be unsafe and should be set aside at once. Nothing happened until a few days ago. We read in the newspapers that the prosecution crumbled at the end of the first day of the hearing.

Lord Falconer of Thoroton

My Lords, I believe that the vital material came to light at the end of November 2001. It is perfectly reasonable for the prosecution to be given a proper opportunity to consider the material before reaching a conclusion. The Criminal Cases Review Commission, which reviews cases in which there may be a miscarriage of justice, referred the matter to the Court of Appeal. That court then sets a reasonable timetable for the matter to be considered. Of course we need to look at the timetable, but a balance must be struck over the way such cases are dealt with so that they are given proper consideration.

Lord Carlisle of Bucklow

My Lords, does the noble and learned Lord agree that the vital point is that, when evidence is being given by an expert witness, the whole of that evidence is disclosed in advance to the other parties in the case?

Lord Falconer of Thoroton

My Lords, that relates not only to the evidence but also to the material that the expert witness might in his or her opinion regard as irrelevant but whose significance could be seen by other experts. The worry is always that either the competence or the arrogance of the experts deprives other parties of the opportunity of looking at the full case.

Lord Goodhart

My Lords, as the noble Lord, Lord Mitchell, said, Sally Clark was extremely fortunate in the work that her husband and the dedicated team of supporters did for her. Is the noble and learned Lord satisfied that adequate help will be available to ensure that the cases of those who are less fortunate in their friends and family are properly investigated before they are brought back to the Criminal Cases Review Commission?

Lord Falconer of Thoroton

My Lords, in many cases it is a matter for the solicitors to undertake the appropriate investigations. This case focuses in particular on the failure of a forensic pathologist to disclose material which underlay the conclusion that he had reached. What needs to be examined is whether the arrangements for disclosure not merely of the report but of the extraneous material was adequate. Again, I do not want to comment in detail on the matter until we have seen the full judgment of the Court of Appeal, which has not yet been published.

Lord Hodgson of Astley Abbotts

My Lords, in the light of the Question and the subsequent exchanges— and given that Clause 29 of the Criminal Justice Bill currently before another place requires the defence counsel to give notification of which defence witnesses will be called—would it not be a good idea if a similar situation applied to the prosecution and it, too, had to specify in advance which witnesses it intended to call?

Lord Falconer of Thoroton

My Lords, there is already an obligation on the prosecution to disclose any expert material that it has, even if it does not intend to use it, because it might be of value to the defence. The question in this particular case related to the extent to which that was complied with.

Lord Monson

My Lords, is Mrs Clark entitled to compensation?

Lord Falconer of Thoroton

My Lords, I do not know precisely what the position is. It is for her to make an application.

Baroness Masham of Ilton

My Lords, was it not MRSA in the spine of the second baby which caused its death? Is this not a very serious problem in our hospitals now?

Lord Falconer of Thoroton

My Lords, there is a real issue regarding the problems of MRSA. The health service has a strategy to deal with it, I do not want to comment on the detail of the case until the Court of Appeal has published its judgment.

Lord Wigoder

My Lords, is it not perfectly clear that this is not a case where the prosecution failed to disclose the evidence that it had before the trial, but one where the evidence never reached the prosecution at the proper time?

Lord Falconer of Thoroton

My Lords, again, I do not want to comment in detail in relation to that. We should wait until we see what the Court of Appeal says in detail.

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