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Are unproven unscientific theories accepted in court?

Clifford G. 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.

SIDS

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 [2003] EWCA Crim 1020, after she had served three years of her sentence.

SBS

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 [2005] 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

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 [2005] 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 G. 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.