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Lord Kingsland: My Lords, I thank the noble and learned Lord the Attorney-General very much indeed for his Statement on these matters of grave and widespread concern. I have a number of questions arising out of what the noble and learned Lord has just said.
First, on pending cases into sudden infant death, I understand that the review identified three in which it was decided not to go ahead with the prosecution on the ground that it would not be safe to proceed. Can the noble and learned Lord tell the House how many other pending cases there are?
Secondly, the scope of the review went back 10 years. That was,
"both practicable and realisable and should ensure that all persons still in custody were included in the review".
Can the noble and learned Lord be confident that that period did, in fact, cover all persons who were still in custody?
Thirdly, I understand from the noble and learned Lord that 279 cases were investigated in the course of the 10 years. The Central Review Team identified 28 which gave,
"sufficient cause for concern in relation to the medical evidence relied upon at trial so as to warrant further consideration".
The facts of only three of these cases were similar to those in the case of Angela Cannings; 25 cases concerned what is described as other medical evidence. What is that other medical evidence and what steps is the noble and learned Lord taking with regard to it?
Fourthly, of the remaining cases, 89 were categorised as shaken baby syndrome. As your Lordships are well aware, there is growing disagreement in the medical profession regarding the nature and pattern of such injuries. What is the current medical evidence that is undermining those 89 prosecutions? What research is being undertaken into the syndrome? Given that the Court of Appeal in the summer of 2005 will consider five of those cases, will the noble and learned Lord take the matter further in the next six months?
Fifthly, will the noble and learned Lord take into account the views of Angela Cannings herself and announce a public inquiry into similar cases?
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Sixthly, on cases of parental abuse that are heard in the family court20 times the number of those heard in criminal courts and where the test is on a balance of probabilities rather than beyond reasonable doubtis the noble and learned Lord aware that, every day, children are being taken from their parents largely on unsupported medical evidence? Does the noble and learned Lord plan to look into this matter, as well as into criminal matters, and into the nature of expert evidence in such cases?
Finally, following the Angela Cannings case, the NSPCC wants to see the recommendations made by the Independent Review of Coroner Services implemented as a matter of urgency. Does the noble and learned Lord agree?
Lord Thomas of Gresford: My Lords, we on these Benches very much welcome the report and congratulate the noble and learned Lord the Attorney-General on the speed with which he set up the inquiry and the thorough methodology behind the Central Review Team which carried out the investigation. We welcome the stress placed by the noble and learned Lord in his report on the effect of unjust convictions, both on the people concerned and on the general public. He echoes the words of Lord Justice Judge in his judgment. It is worth quoting them: Lord Justice Judge concluded his judgment in the Cannings case by saying:
"In a criminal case, it is simply not enough to be able to establish even a high probability of guilt. Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and in any civilised community, that is abhorrent".
This case is a warning to those who suggest that expert evidence can be reduced to a single expert who simply assists the court. It is very important to realise that, at present, experts on both sides, whether for the prosecution or for the defence, regard themselves as non-partisan. Your Lordships may feel that this case establishes that it is right that a defendant should have her own expert and, if on legal aid, be provided with the necessary funds for that.
The report of an expert instructed by the defence, or at least the fact that a report has been obtained, will now be disclosed to the prosecution. I hope that the Attorney-General can confirm that the prosecutionthe CPSwill follow the guidelines of Lord Justice Judge when he said,
"if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed".
I hope that that will be a guiding light in the CPS. When there is a disagreement, it is important that expert evidence on either side should be firmly tested by cross-examination and that the finders of fact, whether magistrates or a jury, should have all the assistance that they can obtain.
The noble Lord, Lord Kingsland, referred to the civil aspect. Of course, on 21 January, the day after the Attorney-General instituted his inquiry into criminal
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cases, the Solicitor-General, Miss Harriet Harman, announced a care case review into the very important civil aspect of the case that the noble Lord, Lord Kingsland, so graphically described, where children had been removed from their mother or from their parents as a result of medical expert opinion that has not been fully tested in the family court and decided on the balance of probabilities. Perhaps the Attorney-General can tell the House the progress of the Solicitor-General's care case review and when we can expect its findings.
Another important step was instituted. On 6 September last the joint working group, set up by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, chaired by the noble Baroness, Lady Kennedy of The Shaws, produced a report called Sudden Unexpected Death in Infancy. It contained a protocol involving a multi-agency approach to the investigation of cases where it is thought that a death has been caused by one or other of the parents or guardians.
Has that protocol been adopted generally? I appreciate that it is only three or four months since the report came out. The protocol called for training for CPS lawyers and recommended that no prosecution should be brought without reference to the multi-agency final professional review. Can the Attorney-General tell us whether the training has commenced and whether that principle of referring to the multi-agency final professional review is firmly in the minds of the CPS?
Lord Goldsmith: My Lords, I am grateful to both noble Lords for their welcome of this report. I particularly thank the noble Lord, Lord Thomas, for what he said about the thoroughness of the methodology. It has been a painstaking exercise. The Angela Cannings case really sounded a warning. It seemed important to me not to leave it to chance as to whether cases in which there might be a miscarriage of justice would be picked up by a defendant reading about it in a newspaper and wondering whether his or her case might be affected, but to try to identify all the cases which could be covered.
It was quite a major process to identify, retrieve, review and then refer the cases. So I am very grateful to the Home Office, the police, the CPS, the Law Society and the CCRC, who were involved. It has produced the results which I have identified.
I agree with the noble Lord, Lord Kingsland, that this is a matter of widespread and grave concern. I share that unease. That is why I acted as I did to set up this review. I turn to the noble Lord's questions. He asked about pending cases. Fifteen cases were identified at first and a further five cases were identified by the police, making a total of 20. They were reviewed by the CPS and 14 were found not to be sudden infant death syndrome cases at all. The remainder were considered personally by the DPP and one case by one of the senior officials. Out of those six cases, three were stopped.
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Secondly, the advice to me wasand I accept itthat taking 10 years as the period for convictions would result in all cases where defendants were still in custody being caught within the net. I have no reason to believe that that is not right. Of course it is perfectly possible for anyone who for some reason falls outside that precise net to bring the matter forward, to bring it to me or to take it directly to the CCRC.
The noble Lord asked about the 28 cases. As he rightly says, three of those are closely analogous to the Angela Cannings case. The other 25 cases, in which there was an issue about medical evidence, are not sudden infant death cases, but cases in which a key issue such as the cause of death or the timing of death was heavily dependent on expert evidence where there was a serious disagreement between distinguished and reputable medical experts. For example, in one case the issue was whether the cause of death was a fall or a blow. It was apparent that there was an injury to the infant's head.
In some other cases the medical evidence relates to the health or the mental state of the defendant. That can be important, particularly where a plea of guilty has been tendered. I hope that gives enough indication of the sort of cases. I emphasise again that the fact that we have concern does not in any way automatically mean that the convictions will be overturned, but we recognise the concern.
The noble Lord asked about shaken baby syndrome cases. In the report now available I have attempted to summarise broadly the medical controversy. In short, shaken baby syndrome cases involve clear evidence of physical injury in the sense of typical injuries such as brain damage, often bleeding into the eyes and sometimes fractured ribs. The medical controversy is that the view has been that those injuries only occur as a result of severe, excessive and obviously inappropriate shaking, and sometimes impact as well, of a child. There is a theoryand I think it is fair to say that it is not proventhat lesser force than that, indeed, most recently no force at all, is capable of giving rise to those same injuries. I set out that controversy more in the report.
I hope that the Court of Appeal, which is in the best position to test these alternative theories, will do that in the course of the cases which will take place next year.
The noble Lord asked whether I would take account of the views of Angela Cannings. I have met her and will meet her again in the new year. I shall listen very carefully to her appalling experience, which nobody should have to go through. I have no intention to order a public inquiry into her case or others.
The family courtsthe noble Lord, Lord Thomas, asked about the matter as wellare not directly within my ministerial responsibility. The Department for Education and Skills, where the Minister for Children is to be found, issued a circular asking councils with social services responsibility to undertake a review both of all current cases and cases where there was a care order still in force in favour of a local authority.
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Both stages of that review have been completed and the results have been published and placed in the Library of the House. I could give further details of that if noble Lords want me to, but essentially the results of those reviews have already been published. That is the answer to the noble Lord, Lord Thomas, who asked about what my right honourable friend the Solicitor-General said.
The noble Lord, Lord Kingsland, asked also about the report into the operation of Coroners' Courts. I am not in a position to give up-to-date information on the Government's response to that report. Again it is outside my ministerial responsibilities. I will ensure that a letter is sent to the noble Lord giving as much information as possible at this stage.
The noble Lord, Lord Thomas, made the point, with which I entirely agree, that these cases demonstrate the importance of expert evidencefrom whichever side it is calledbeing objective, in order to assist the court in reaching a just verdict. An expert is not there as a hired gun or as an advocate for one cause or another, but in order to help the court to reach a just verdict. I think that there is much force in what the noble Lord says about cases which demonstrate that sometimes if the defence did not have its own expert, certain issues might not be fully ventilated. I take that point.
The noble Lord asked about the guidelines set down by Lord Justice Judge. There is an important qualification here. Lord Justice Judge in the Cannings case gave his judgment in terms of a particular category of case and not in respect of all cases in which there is a disagreement between experts. In many cases juries are well able to determine disagreements between experts. But he said that in particular categories of caseswhere one is at the frontier of medical knowledge and where the case depends entirely on medical evidencethere is a particular danger. I can assure the noble Lord that, certainly in cases of sudden infant death, the CPS is taking account of that guidance. That is why three of the cases were stopped.
Finally, the Government welcome the report of the noble Baroness, Lady Kennedy. Strands of departmental work are taking place at the moment in relation to her recommendations. I am sure that at an appropriate moment we will make sure that the results of those departmental strands, including those by the Crown Prosecution Service, are made known to your Lordships.
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