December 13, 2012
As published December 2012 – The Law Society Advocacy Section Newsletter
Are unproven unscientific theories accepted in court?
Clifford Miller, a solicitor and a former university lecturer, considers some family cases where testimony from since-discredited scientific experts has led to injustices, and looks at how the legal system should manage expert scientific evidence.
In our courts, the innocent are sometimes convicted and children removed from parents on the basis of what are presented as scientific theories. Parents may be accused of Munchausen’s Syndrome by Proxy (MSbP), now renamed Fabricated or Induced Illness (FII) (alleged abuse by inventing illnesses in their children), or murder (due to Shaken Baby Syndrome (SBS) or when more than one child dies from Sudden Infant Death Syndrome (SIDS)). What the average family practitioner may not know is the details of the science behind these allegations.
In some cases of SIDS, a parent, often the last person alone with their still living child, is accused of murder. The now discredited expert witness, Professor Sir Roy Meadow, a past President of the Royal College of Paediatrics and Child Health, devised ‘Meadow’s Law’: that in a family ‘one sudden infant death is a tragedy, two is suspicious and three is murder, until proved otherwise’ (The ABC of Child Abuse, Gower Press, 1986).
For SIDS, Meadow’s ‘expert’ testimony was that the chance of two SIDS deaths in one family was one in 73 million. The correct position is that a family with one SIDS death is far more likely to suffer another. This was revealed through one of many sad cases: that of solicitor and mother, the late Sally Clark, accused by Meadow of infanticide, and convicted to life imprisonment. Clark was acquitted on appeal in R v Clark  EWCA Crim 1020, after she had served three years of her sentence.
In the majority of SBS cases, there is no visible sign of external trauma. Experts infer child abuse by intentional shaking based on evidence of a ‘triad of injuries’ in the brain: subdural hematoma, retinal haemorrhage, and cerebral oedema (Shaken baby syndrome, BMJ 2004;328:720–1).
But in alleged SBS cases, the ‘triad of injuries’ alone now cannot justify a finding of abuse, as demonstrated in R v Harris & Ors  EWCA Crim 1980. Additionally, two British pathologists have found that the ‘triad of injuries’ in SBS can occur in children who have died naturally and not through any abuse. Even where there is evidence of other injuries, it may still be inappropriate to allege abuse. Jayden Wray’s parents were acquitted of murder after evidence showed his fractures could have been caused by his severe rickets due to Vitamin D deficiency.
MSbP / FII is a theory and not science. It was originated by Meadow, and if such a syndrome ever existed, even Meadow claimed cases were rare. Post-Meadow, in the case of A County Council v A Mother & Ors  EWHC 31 (Fam), Mr Justice Ryder stated:
‘For my part, I would consign the label MSbP to the history books … I would caution against its use other than as a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist / psychologist). … What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.’
The need for change
How or why did the legal process fail? Later it succeeded, but only in some cases. Are the legal systems not dealing with such cases appropriately? Or, once such theories take hold, are lawyers dependent upon experts who, like supertankers, change course only with utmost difficulty once these theories become part of their formal published literature? An NSPCC briefing paper (PDF) published as late as 2011 suggests that MSbP / FII is common, rather than rare, and some of the research cited is by publicly discredited experts. Are expert opinions always dispassionate and objective, or are they sometimes ‘unbalanced, obsessive and lacking in judgment’ (as quoted by the judge in R v Harris & Ors)? The theory-dependence of observation shows that experts may tend to fit evidence to preconception.
Evidentially, we need to know what is true. Lawyers and judges must always question all theories underlying expert testimony, no matter how eminent the expert, or how well accepted such theories might seem. If the expert consensus favours such theories, will the Law Commission’s proposed ‘gatekeeper’ function (for English judges to allow only expert testimony which satisfies a reliability test) ever prevent expert injustice? And do we exclude new theories which may be correct but which are not widely accepted?
Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, Imperial College, London University, and a published academic on complex technical and medical evidence.
November 15, 2012
[Originally Published 18 June 2012 – For The Law Society Advocacy Section]
Clifford Miller, a solicitor and a former university lecturer, considers modern evidential practice and some new proposals for evidence put forward by the Law Commission.
If you find evidence, its legal rules and how to apply them confusing, you are in good company. The logic can appear tortuous, but mastering it can sometimes make the difference between success and failure on decision-turning facts.
The problems with evidence are compounded by the growth in and need for complex technical, scientific and medical evidence in the modern technological world. As lawyers, we need to be equipped to deal with expert opinion evidence. An expert opinion can now be decisive on the ultimate issue.
The need for change
The philosophical and theoretical bases underpinning modern evidential practice and procedure in the English courts have long been in need of attention. About 20 years ago in his compilation of exploratory essays, Rethinking Evidence (Cambridge University Press), William Twining made a compelling case for a renewed and new approach to the study of evidence, proof and fact-finding in law, recording how evidence scholarship has been, at best, fragmented and spasmodic. Twining noted how Bentham’s Rationale of Judicial Evidence and Wigmore’s Principles of Judicial Proof rank among the major achievements of our scholarly heritage, yet have been largely ignored.
Since Twining published Rethinking Evidence, other writers, including Susan Haack and Dr Déirdre Dwyer have been addressing the same issues. Additionally, the Law Commission proposed last year a new reliability-based admissibility test to be applied to most expert opinion evidence tendered for admission in criminal proceedings. The Commission also proposed a rule that expert opinion evidence is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. See the Law Commission Report No 325 on Expert Evidence in Criminal Proceedings in England and Wales (agreed text 21 February 2011).
These proposals follow from the experience in the US of the ‘Daubert rules’. US judges are now ‘gate-keepers’: they are expected to allow the admission of reliable scientific and technical evidence, and to exclude the unreliable before it goes before a jury. The Daubert rules have had a mixed reception in the US, and raise questions that have not been properly dealt with.
However, proposals of these kinds are considered by many to be a ‘sticking-plaster’ approach to the underlying issue: the need for better developed skills and knowledge necessary to deal effectively with complex scientific and technical evidence in court. And achieving that aim clearly remains some way off.
Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, at a College of London University, and a published academic on complex technical and medical evidence.