How the west is being lost

The criminal justice system is important in the case of occupational injuries. If someone is killed in an accident, it could result in a criminal prosecution; breaching a regulation may lead to the same result. Serious concerns are appearing, however, concerning the application of the world’s criminal justice systems to occupational health and safety (OHS) cases.

If one looks objectively at what is happening in the world, one must be concerned about the state of the West’s criminal justice systems. It is difficult to assess the performance of a judicial system at the best of times, but it is important to remember that the criminal justice system requires proof beyond reasonable doubt for someone to be convicted, whereas the civil justice system requires proof that someone is liable on a balance of probabilities. From this it should follow that if the criminal justice system is experiencing problems, the same is likely true for the rest of the system.

This article and the one to come in the next issue discuss the UK and US systems respectively as proxies for the West. Historically, the UK judicial system was regarded as the best in the world; accepted as being beyond reproach, it was the gold standard to be used by other countries. Hence, if a problem exists in the UK criminal justice system, this is likely true for the rest of the world as well. 

Two UK cases will be discussed: firstly, the convictions of mothers for murdering their children and, secondly, the more recent Horizon scandal. 

Sudden infant death syndrome (SIDS)

SIDS is one of the great tragedies faced by society. For no obvious identifiable reason, a certain number of babies die in their cots. For this reason, SIDS is also called cot death. The likelihood of a baby dying this way each year is about one in 8,500.

Years ago, some doctors got together and convinced themselves that mothers were murdering their own children, although they could not work out how (cot deaths remain unexplained). In some cases, families experienced double or even triple cot deaths. The doctors reasoned the probability of experiencing two cot deaths, statistically speaking, would be one in 73,000,000 per annum. They reasoned further that this probability was so low that the only reasonable explanation was that both babies were murdered.

It is important to note that the doctors did not find any actual evidence at all that the babies were, in fact, murdered. So, according to them, the second death revealed the murder. In their view, if three deaths occurred, society should not even bother with a court case – murder had clearly taken place.

So, these doctors appeared in numerous courts as expert witnesses. On their evidence, mothers were convicted for the murder of their babies, even though this was not real evidence, but rather mere statistical probability. The matter eventually came to a head in a case involving Sally Clark, whose story was published in a book by John Batt. Batt – a solicitor just like Clark – knew her all her life, and told her story in A mother’s fight for justice – Stolen Innocence – the Story of Sally Clark.

Based on the statistical evidence of these medical doctors, Clark was found guilty of murdering her two children and sentenced to life imprisonment, with her conviction subsequently confirmed on appeal. The Clark case brought what was happening in the courts to light, however, and the public was not convinced. 

Eventually it was discovered that Clark’s second baby died of natural causes: staphylococcal septicaemia to be exact. Eleven of the world’s leading experts on SIDS looked at the evidence and confirmed natural causes as the reason for the children’s deaths. Clark’s conviction for murder was overturned on a second appeal and she was released.

The Royal Society of Statisticians expressed concern over how statistics were being used in court cases; at the time nearly 300 other cases were identified as being suspect.

In our view, the real problem does not seem to have been identified or addressed: it lies with the criminal justice system, not the medical profession. The legal system should not have been able to secure a conviction if, in fact, no crime had been committed. The evidence should not have been admitted in a court case. When it is said the case must be “proven beyond reasonable doubt”, that does not apply to the crime itself. It applies to the question of the guilt of the accused with respect to the crime. When it comes to whether a crime has even been committed, there should be no doubt whatsoever.

The Horizon Post Office scandal

The Sally Clark and other SIDS cases may well be thought to be an aberration, but the Horizon scandal indicates this to be untrue. Horizon is a computer software accounting system installed by the UK Post Office, which was faulty. It indicated money was missing when this was not the case and, as a consequence, more than 900 sub-postmasters and postmistresses were prosecuted over a long period. A public enquiry was launched in February 2021 and about 100 convictions have now been overturned. This has since been labelled as the biggest single series of wrongful convictions in British legal history. 

Again, it is important to understand what happened. Hundreds of individuals were convicted of a crime that never actually took place. One would think that to be convicted of stealing money, it would be necessary to show that the person who stole the money did, in fact, steal the money. It should not be enough to claim that the accounting system showed that money was missing. 

So, once again, the question that needs to be asked is how the UK criminal justice system allowed a conviction for a crime which, in fact, never took place. To reiterate: reasonable doubt refers to the proof that a person committed the crime … not that a crime was committed. 

In the SIDS cases, roughly 300 mothers were convicted of murdering their children in terms of dubious criminal processes. We cannot be sure if the babies were, in fact, murdered. Then, nearly 1,000 individuals were prosecuted for stealing money that nobody is actually sure is even missing!

Under these circumstances, it is understandably difficult to maintain confidence in the UK criminal justice system … In the next article, we will discuss matters across the pond as we delve into the US criminal justice system.