Jury 'misled' over solicitor jailed for baby deaths

The jury that convicted the solicitor Sally Clark of murdering two of her children had been deliberately misled by the prosecution, the Court of Appeal was told yesterday.

Fresh scientific evidence concealed from the defence team at the 1999 trial showed that the death of at least one of the babies was due to natural causes and was not the result of being shaken or smothered by Clark, her lawyers said.

Clark, 37, listened as her barrister, Clare Montgomery QC, told the three judges in London there had been a "material disclosure" that made the convictions unsafe.

Clark, who has always protested her innocence, was jailed for life by Chester Crown Court in November 1999.

She was convicted of smothering 11-week-old Christopher in December 1996 and shaking to death eight-week-old Harry in January 1998 at the home she shared with her husband, Stephen, in Wilmslow, Cheshire.

Ms Montgomery said that at the end of 2000 she learnt for the first time that there had been clear evidence of a staphylococcus aureus infection, which had spread as far as Harry's cerebral spinal fluid. She submitted that this evidence had been known to the prosecution pathologist, Dr Alan Williams, who had examined each child after death, since February 1998.

Ms Montgomery said Dr Williams had failed to mention at the trial that the bacteria had been found or tested. "We say the jury was misled and the overwhelming possibility is that they were deliberately misled," she said.

Clark's appeal team also cast serious doubt on the prosecution's assertion that the chance of two cot deaths in Clark's family stood at one in 73 million. Lord Justice Kay, the senior judge hearing yesterday's appeal, described the figure as "dramatic evidence ... that one could confidently expect to have a dramatic impact on the jury".

Ms Montgomery said that in any family that had suffered a first cot death, a second was not rare. In fact there was a "significant risk" of a second death, she added. Odds of between one in 100 and one in 400 had been estimated.

Ms Montgomery said the Crown's attempt to minimise the importance of the microbiological tests since they became known had "wholly failed". Each prosecution expert had conceded it was possible Harry died of acute staphylococcal infection – the dispute between the prosecution and defence experts was the degree of likelihood.

If the court accepted there had been non-disclosure of potentially material evidence, the court would have to look at "the whole process of the investigation of Harry's death, the preparation for trial and the trial itself to see how it has been affected". She added: "We submit that the whole course of that process has gone awry."

The appeal continues.