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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Anthony, R. v [2005] EWCA Crim 952 (11 April 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/952.html Cite as: [2005] EWCA Crim 952

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		11th April 2005

1. LORD JUSTICE JUDGE: Following a reference to this Court dated 2nd February 2005 by the Criminal Cases Review Commission ("the Commission") under section 9 of the Criminal Appeal Act 1995, this is an appeal by Donna Anthony against her conviction at Bristol Crown Court on 17th November 1998 before Astill J and a jury of murder of her two children. She was sentenced to life imprisonment on each count. The present appeal is not contested by the Crown.
2. The appellant had two children. Jordan was born on 15th February 1995. She died on 1st February 1996 aged 11 and a half months. Michael was born on 10th November 1996. He died just over four months later on 20th March 1997. The prosecution case against the appellant was that these babies were killed by her, their mother. They were victims of smothering. Her case at trial was that she had done them no harm and that they must have died naturally.
3. On 29th June 2000 her first appeal against conviction was dismissed. Two grounds were considered by the Court. The first related to the admissibility of evidence from Professor Sir Roy Meadow. The point taken then does not arise now. We can therefore summarise it briefly.
4. Before the trial Professor Meadow had examined the appellant's medical and social services records. He concluded that she was suffering from Munchausen's Syndrome by proxy. At a preliminary hearing the prosecution agreed to exclude all references to that diagnosis. The defence then argued that the omission of references to Professor Meadow's diagnosis was insufficient. His views would undoubtedly have been influenced by the diagnosis. It was inevitable that if the defence sought to advance that contention before the jury, then the diagnosis itself would in the end have to be put before the jury. This undoubtedly created a forensic difficulty. We quote:

"... but the fact that counsel was faced with a difficult tactical decision did not make Professor Meadow's evidence inadmissible or its admission unfair."

Accordingly, the first ground of appeal was rejected.

5. The second ground rose from an application on the appellant's behalf to introduce evidence under section 23 of the Criminal Appeal Act 1968 in support of a contention that at the time of the deaths of her children the appellant was suffering from a severe personality disorder sufficient to establish the defence of diminished responsibility. The Court of Appeal rejected the application. The primary reason was that the appellant continued to deny that she was responsible for the deaths of her children. It was also noted that the expert evidence sought to be introduced was in any event inconclusive. Therefore this ground too was rejected and accordingly the appeal was dismissed.
6. The evidence, some of it contradictory and conflicting about the lives of each of these two children, are meticulously analysed in the Commission's statement of reasons. For the purposes of this appeal, and subject only to minor changes in the narrative order, we gratefully adopt the analysis as our own.
7. Jordan. Mrs Anthony's first child, Jordan Louise, was born on 15th February 1995. At the time Mrs Anthony was living with her husband, Dean Anthony. On 22nd March 1995 Mrs Anthony took Jordan to the hospital. Mrs Anthony told doctors that she had found Jordan in her cot. She was not breathing. She had no pulse and she was blue. Mrs Anthony picked Jordan up and she responded by crying. Mrs Anthony told medical staff that this was the fourth time that something like that had happened. The doctors found that Jordan had raised levels of glucose and white cells in her blood which indicated that she had suffered some trauma. At trial Mrs Anthony said that after finding Jordan she patted her on the back and when that had no effect she performed cardiopulmonary resuscitation. It was put to Mrs Anthony that she did not tell the police when she was questioned after Michael's death that she had patted Jordan on the back and there was nothing in the hospital records about performing cardiopulmonary resuscitation which would normally have been noted.
8. Mrs Anthony also gave evidence about previous episodes of breath holding. She said that two episodes lasted between 5 and 10 seconds and two had lasted between 15 and 20 seconds. Mrs Anthony said that on each occasion she had visited her GP. Her GP's records referred to only one such visit, on 20th March 1995.
9. Mr Anthony gave evidence that Jordan suffered a choking episode when she was about one month old. He thought that Jordan had stopped breathing, he shook her and she started to breathe and was crying.
10. Mrs Baker, Mrs Anthony's mother, who is now deceased, gave evidence at trial that Mrs Anthony had told her before 22nd March that from time to time Jordan stopped breathing. As a result, Mrs Baker kept a special eye on Jordan when baby sitting but never saw it happen.
11. On 29th March Jordan was admitted to hospital again. Mrs Anthony told doctors that Jordan had stopped breathing. She had no pulse and she was blue and lifeless. Mrs Anthony said that she had resuscitated Jordan and managed to start her breathing. In her evidence at trial Mrs Anthony said that she found Jordan in her cot after a long sleep. The apnoea alarm, which she had given after the first admission to hospital, was going "absolutely mad". Jordan was a strange colour. Mrs Anthony patted her back and gave her cardiopulmonary resuscitation. When Jordan started breathing again, Mrs Anthony telephoned for an ambulance. The prosecution noted that Mrs Anthony had not mentioned the alarm in accounts she gave to the hospital and to the police after Michael's death.
12. Jordan was admitted to hospital again on 23rd August. Mrs Anthony told doctors that Jordan was playing in her cot when she fell to the floor and stopped breathing for about ten seconds. Mrs Anthony picked Jordan up and she slowly improved. She was very drowsy, but back to her normal self within an hour. On admission to the hospital medical staff found Jordan to be pale, drowsy and floppy. The prosecution suggested that it was odd that Mrs Anthony said the baby had recovered, whereas medical staff said differently. In evidence at trial Mrs Anthony initially said she did not remember what happened during this incident. She only did so when she was referred to the medical notes. The prosecution claimed that this was an example of her pretending to remember matters when it suited her.
13. On 27th August when Jordan was again admitted to hospital Mrs Anthony told doctors that Jordan had suffered an apnoea attack, where breathing stops, lasting about 90 seconds. After bathing Jordan, Mrs Anthony had put her on the floor on a towel. Mrs Anthony noticed that she had gone white and floppy and stopped breathing, although she had not turned blue. Mrs Anthony called an ambulance, but Jordan returned to normal when picked up and stimulated, although she was less responsive for 10 to 15 minutes.
14. Mrs Dack, the health visitor, gave evidence that Mrs Anthony told her she bathed Jordan placed her on a towel, turned away and when she turned back Jordan had "nearly gone". The prosecution commented that Mrs Anthony had told the police a different story when she was questioned after Michael's death. To the police Mrs Anthony said that Jordan was still in the bath when she had gone rigid and then floppy and had not stopped breathing. Mrs Anthony gave essentially the same account in evidence.
15. Mrs Anthony also said in evidence that her friend, Toni Caswell, had telephoned the ambulance. Mrs Caswell gave evidence that she had not done so.
16. Jordan had two subsequent admissions to hospital with infections. According to hospital staff and records Jordan did not suffer any breathing difficulties during any of her admissions to hospital. Jordan died on 1st February 1996.
17. Rita Wilson, Mrs Anthony's neighbour, gave evidence that Mrs Anthony and Jordan visited her in the afternoon, staying until 3.30 p.m., at which time Jordan seemed happy. At some time between 6.00 and 6.30 Mrs Anthony reappeared and asked Miss Wilson to telephone for an ambulance because Jordan had stopped breathing. Jordan was white with blue lips. Mrs Anthony carried out resuscitation on Jordan and water came out of her mouth. Miss Wilson said that Mrs Anthony seemed upset but calm. Mr Anthony arrived home around this time and gave evidence that Mrs Anthony was scared, panicking and almost hysterical. He pressed on Jordan's chest in an attempt to restore her breathing. Jordan was dead by the time she reached hospital.
18. Mrs Anthony gave evidence that Jordan normally woke from her afternoon sleep at 5.45 p.m. and when she had done so Mrs Anthony went to check on her. She found Jordan lifeless, blue around the eyes, nose and mouth and with no pulse. Mrs Anthony said that she had never seen Jordan so bad. She rushed her downstairs and performed cardiopulmonary resuscitation. She then rushed to Rita Wilson's house because she did not have a telephone in her own house. Mr Anthony arrived home shortly thereafter.
19. In his evidence at trial Mr Anthony expressed surprise that Jordan had been upstairs in the cot during the daytime. It was the first time this had happened. Mrs Anthony gave evidence that she had put Jordan to sleep in her cot because she wanted Jordan to get into the habit of taking her afternoon sleep there. The prosecution pointed out that Mrs Anthony had told police that it was because she was going to hoover and did not want to wake Jordan. Mrs Anthony said that the police did not give her a chance to give a full explanation. However, the prosecution pointed out that there was a solicitor present during the interviews as well as a social worker as an appropriate adult. A statement by the social worker was read, stating that she considered that the interviews were conducted in a perfectly fair manner. The prosecution suggested that Mrs Anthony had to come up with an explanation for not finding the child in time.
20. In relation to Jordan a number of additional strands of evidence were available. Lisa Wilkinson said that after Jordan's death she had spoken to Mrs Anthony on the telephone. Mrs Anthony had phoned her. Mrs Anthony had said that Jordan was "a fucking little shit, an absolute nightmare" and it was "a good excuse to have a piss up the funeral." In cross-examination Miss Wilkinson denied that, as Mrs Anthony claimed, Mrs Anthony had said that her wedding had been an excuse for a "piss up". Miss Wilkinson said that Mrs Anthony had also told her that Jordan had cried and screamed, that Mrs Wilkinson had said "babies do that and you have to deal with it" and Mrs Anthony said "not any more I haven't". Miss Wilkinson denied that she disliked Mrs Anthony.
21. In her evidence Mrs Anthony denied that she had made the comments that Miss Wilkinson described. She said that Miss Wilkinson had bullied her when she was young. She gave conflicting evidence about who made the telephone call. Initially she said that Miss Wilkinson had telephoned her and asked what had happened. Later she said that she telephoned Miss Wilkinson because she needed a friend. Mrs Anthony said that Miss Wilkinson became abusive on the telephone and said:

"I am glad your daughter is dead. It is best place she could be because you are a hopeless mother and you didn't deserve children."

22. Mrs Anthony said that she remembered telling Mrs Baker this. She also said that, although she had said to Miss Wilkinson that her wedding had been "a good excuse for a piss up", she had forgotten about that when she was interviewed by the police.
23. Mrs Anthony gave evidence that she telephoned her mother and asked her to tell Miss Wilkinson to leave Mrs Anthony alone. Miss Wilkinson confirmed that she had received a telephone call from Mrs Baker and that Mrs Baker told her to leave Mrs Anthony alone or she would pay the consequences. In her evidence Mrs Baker agreed that she had telephoned Miss Wilkinson because Mrs Anthony was upset and crying. Mrs Anthony asked if she would telephone Miss Wilkinson and asked her not to visit because she could not cope. Mrs Baker said that Miss Wilkinson was very understanding.
24. Mrs Dack, the health visitor, gave evidence that Mrs Anthony was warned more than once about the dangers of smoking and having her flat too warm. Mrs Dack said more than once that Mrs Anthony received close attention and monitoring of her performance as a mother. At first Mrs Anthony had difficulty bonding with Jordan, but that improved and Jordan eventually made progress. Mrs Anthony gave evidence that after Jordan's birth she had sometimes asked her mother for help because she was exhausted.
25. Mrs Baker gave evidence that Mrs Anthony had not realised what motherhood was like and she confirmed that she had often taken care of Jordan, sometimes for periods of two weeks, sometimes for the weekend, to give Mrs Anthony a break. Mrs Anthony told the police that her parents looked after Jordan for 60 per cent of the time. In evidence, however, she said that it was not as much as this. Mrs Baker denied that she had ever voiced any concerns about Mrs Anthony's care of Jordan, but this was contradicted by Mrs Dack and by Mrs Dack's notes.
26. Mrs Baker gave evidence that Jordan was not a well baby. She was always sick after feeds and was not a healthy child. Although Mrs Baker had not seen anything like the episodes described by Mrs Anthony, there were times when Jordan had breathing problems and episodes where her eyes became very vacant. It happened in Mrs Baker's presence and became the norm for Jordan. She said that Jordan would be playing and then she would suddenly stare, go listless and pale. Mrs Baker would shake her and then Jordan would become sleepy. It frightened Mrs Baker. She never called an ambulance but she mentioned it to Mrs Dack, the health visitor, who said that it was normal. Mrs Baker said that it could also happen when Jordan was asleep. She would breathe very quickly and then very slowly and often go rigid. Dr Nicole dismissed Mrs Baker as over reacting. Mrs Baker said that the day before Jordan's death she had had a cold, but she had previously been really ill with flu. She admitted stating in her police statement, however, that on the day before Jordan died she "looked extremely well". Mrs Baker also said that from the time of his first injection Michael (we will come to Michael in a moment) was wheezy and chesty and he had a cough.
27. Mrs Baker also gave evidence that Jordan could pick up small things by the time she was 11 months old. She had once got hold of Mrs Baker's tablets. She said she had not realised that this might be significant until she learned in court that Jordan had swallowed a button. The prosecution suggested that this was untrue and that Mrs Baker had made up the tablet story to deal with the button point.
28. Toni Caswell also described Jordan as being good at picking up things and recalled an occasion when Jordan had choked on something she had picked up. Mrs Anthony said that Jordan could pick up small things from about six months and put them in her mouth. Mrs Baker said that Mrs Anthony worried about Jordan and constantly asked questions about her health. Mrs Baker said that she had asked Mrs Anthony whether she was perhaps being over anxious about Jordan and had suggested that the episodes were not quite as bad as she described. Mrs Anthony insisted that she not imagined Jordan turning blue.
29. Toni Caswell, a friend, gave evidence that Mrs Anthony was a "bubbly, outgoing, friendly person with a loving and caring nature". She said that Mrs Anthony had a reasonably close relationship with Jordan and was very loving towards her. She said that Jordan sometimes went vacant, but that she had thought nothing of this.
30. Michael. Mrs Anthony's second child Michael was born on 10th November 1996. Dean Anthony was the father. Mr Anthony gave evidence of two choking episodes when Michael was still in the maternity ward and that he had been placed in special care as a precaution.
31. Mrs Anthony said in evidence that she had mixed emotions about becoming pregnant again. She was happy but frightened. When Michael was born, Mrs Anthony was put in contact with the Foundation for the Study of Infant Deaths and given an apnoea monitor. On 10th January 1997 Mrs Anthony was referred by her GP to Dr Nicole, a paediatrician at Yeovil District Hospital. Dr Nicole noted that Mr Anthony undertook all the care of Michael and she felt that Mrs Anthony was rather vague.
32. On 15th January Mrs Anthony attended the out-patient clinic at the hospital. She was concerned because Michael had a cough and was vomiting and difficult to settle. Michael was kept in hospital. He had lost a little weight and had a runny nose and cough, although his chest was clear. Mrs Anthony said in evidence that Michael was extremely chesty and very wheezy and that he had difficulty breathing while being fed.
33. On 21st January Mrs Anthony was seen by Dr Nicole at the out-patient clinic. Dr Nicole recorded that Michael had no problems, no apnoea expels and no abnormal signs. Mrs Anthony said that he was still wheezing and she was told to him give him Calpol (infant paracetamol).
34. By this time the relationship between Mr and Mrs Anthony was in some difficulty and by March they were no longer living together.
35. On 10th March Michael was referred to the hospital by his GP. Mrs Anthony reported that he had had an apnoea attack but was now well. Miss Wilson said that between 5.00 and 5.30 p.m. she saw Mrs Anthony who said that Michael had stopped breathing for a while and she was waiting for an ambulance. Miss Wilson said that Mrs Anthony seemed normal and happy and that Michael was coughing quite badly.
36. Mrs Anthony gave evidence that she had been upstairs tidying and Michael was downstairs in his chair. The apnoea monitor was clicking normally. As she was half way down the stairs, she heard a squeeze or choke. She rushed to get Michael and rubbed his back. He perked up. Mrs Anthony telephoned Dr Latimer who told her to telephone for an ambulance. In cross-examination Mrs Anthony confirmed that the apnoea alarm had not sounded. She said that Michael was bright red with a strong pulse and he had not stopped breathing. The prosecution pointed out that Mrs Anthony told the police, as she had indicated to Miss Wilson, that Michael had had an apnoea attack just like Jordan. It was also confirmed, however, that Mrs Anthony told the police that Michael had not stopped breathing.
37. According to hospital notes and to Dr Nicole and Staff Nurse Kay Jones Mrs Anthony said that Michael had had a cough for five days. He had vomited at 3.30 p.m. and she had then found him in his cot blue in the mouth and not breathing and without a pulse. Mrs Anthony had three attempts at mouth to mouth resuscitation and Michael then started to breathe. Mrs Anthony denied that she had said this to hospital staff. Michael was kept in hospital for nine days. Mrs Anthony did not stay over night because according to her and to Mrs Baker she had an extreme fear of hospitals.
38. Mrs Anthony gave evidence that on 18th March she was told that there was no question of Michael being released because he had not gained enough weight. Mrs Baker gave evidence to similar effect. On 19th March she was told that he was to be discharged. In her evidence Mrs Anthony said that she was unhappy with this because Michael was pale and lethargic and did not know where he was. Mrs Baker also gave evidence that Michael was ashen, lying in his cot and not moving. He was in a strange position and his eyes were staring. A nurse called Jane came and said that he was fine and had just woken. Mrs Baker insisted that he was not fine and not fit for release, but no attempt was made to find Dr Nicole.
39. Deborah Spencer, who had known Mrs Anthony at school, gave evidence that she was visiting her niece in hospital in March. She learned that Michael, who was also on the ward, was Mrs Anthony's son. Miss Spencer said that she heard Michael's breathing alarm go off twice. The first time a nurse came within two minutes. The second time no one came. Miss Spencer looked at Michael. He was very pale and lying very still. He did not seem to be breathing. She went to fetch a nurse who put her hands on his chest and he twitched. The nurse covered Michael up, reset the monitor and left. Miss Spencer insisted that she had looked at Michael before fetching the nurse and that she was shocked that Michael had been discharged even though this was not mentioned in her statement. She said in her original statement that she was angry that Mrs Anthony was not at hospital with Michael.
40. Dr Nicole gave evidence that prior to Michael's discharge she told Mrs Anthony to bring him straight back to hospital if she had any concerns. Dr Nicole said that medical staff were concerned that Mrs Anthony would find it difficult to manage because she had split up from her husband. Mrs Anthony told them she was not worried about having Michael at home.
41. The judge noted that there was a real difference of evidence between Dr Nicole, on the one hand, and Mrs Anthony and Mrs Baker, on the other, as regards Michael's discharge from hospital. Dr Nicole's version was supported by her contemporaneous note.
42. Mrs Anthony gave evidence that her parents took her home with Michael at 2.45 p.m. and stayed for about two hours. Mrs Baker gave evidence that the house was overwhelmingly hot and that they had stayed for one to one and a half hours. Michael was pale and whiny, but still smiling.
43. According to Mrs Anthony's evidence Michael slept in the afternoon and seemed peaky and lethargic. Mr Anthony telephoned at 4.45 p.m. to ask if he could see Michael and Mrs Anthony agreed. Mrs Dack, the health visitor, telephoned at 5.15. Mrs Anthony said that she told Mrs Dack that she was worried about Michael. Mrs Dack's notes stated that Mrs Anthony had said that everything was all right and that Mrs Anthony was in the process of feeding Michael. She was told if she had any concerns she should take him to the hospital.
44. Mr Anthony gave evidence that Mrs Anthony telephoned him and asked him to visit. She was bubbly and he assumed that she was happy to have Michael back at home. He arrived at 4.15 p.m.. Michael was awake, looking around and feeding well. Mrs Anthony was a bit niggly because she could not go to a presentation that was being made that evening in Jordan's honour. She asked him to return after the presentation. Mr Anthony said that he left at 7.05 p.m.. Michael was in the chair in the sitting room.
45. Mrs Anthony gave evidence that Mr Anthony arrived at about 5.45 p.m.. They talked and had tea while Michael was asleep. Mr Anthony then woke him for a cuddle and gave him a feed while Mrs Anthony went for a bath. While Mrs Anthony was in the bath, Mr Anthony said he had to go. He left the listening device with Mrs Anthony.
46. Mrs Anthony said that she felt asleep in the bath and awoke to the sound of the apnoea alarm. She jumped out of the bath, tried to run downstairs and tripped down the last two steps twisting her ankle. She found Michael blue around the eyes, nose and mouth and not breathing. The room was warm and the fire was still on. Mrs Anthony took Michael out of the chair and performed cardiopulmonary resuscitation but he did not respond. She said that she could have been doing that for ten minutes or one hour, she lost track of time. She took him out of the front door but did not see anyone she knew. She was shouting for help and still performing cardiopulmonary resuscitation. After about five minutes she saw a neighbour, Janine Wadner, and asked her to telephone for an ambulance. Mrs Anthony was asked why she had not telephoned 999. She said that she did not want to stop the cardiopulmonary resuscitation.
47. Adam Wilshire, another neighbour, gave evidence that he saw Mrs Anthony on her doorstep pacing to and fro at 7.45 p.m.. He was sure of that time. Michael was not with her. She was dithering and seemed agitated. Mr Wilshire denied that he was on bad terms with Mrs Anthony, but admitted that he had said when he heard of Michael's death "that fucking bitch has done it again". Mrs Anthony denied that she was ever outside alone that evening.
48. Mrs Wadner gave evidence that she was putting the car away some time between 8.00 and 8.30 p.m. when she saw Mrs Anthony sitting on the steps huddled over the baby. She thought Mrs Anthony was crying. After putting the car away, she walked to Mrs Anthony and then heard her shouting about an ambulance in very strong language. She had heard no cries for help before then. Mrs Wadner said that Mrs Anthony was clearly distressed. Mrs Wadner rang 999 from Mrs Anthony's telephone that noted that the harm was bleeping. The inside of Michael's mouth was dark blue and he was floppy and warmish. The defence noted that in Mrs Wadner's statement she had said that Michael was warm. Mrs Wadner offered to phone Mrs Anthony's mother so that Mrs Anthony could go in the ambulance but Mrs Anthony did not go in the ambulance.
49. Rita Wilson gave evidence that she had heard a noise outside at 8.15 p.m. when the national lottery television programme finished. She saw Mrs Anthony crouched on the path, crying and cuddling Michael. She took Mrs Anthony to hospital in her car. Mrs Anthony said, "Why me?" Mrs Anthony told her that she was upstairs in the bath when the alarm sounded and she ran downstairs. Mrs Anthony was tearful and crying a lot.
50. The prosecution pointed out that Mrs Anthony had told the police on two occasions that the alarm went off within two minutes of Mr Anthony's leaving. The 999 call was not made until 8.32 p.m.. In her evidence, Mrs Anthony said that the term "two minutes" was a figure of speech. She said she thought that it was about half an hour later than 7.05 when Mr Anthony left, but Mrs Baker had told the police that Mr Anthony was at the social club at 7.25 p.m. and he said that he had been home first to change. In evidence Mrs Baker said that she telephoned Mrs Anthony between 6.55 p.m. and 7.15 p.m. and spoke to Mr Anthony. She said he arrived at the club between 7.30 and 7.40 p.m.. She had told the police that he had arrived earlier than this. Mrs Anthony said she was distressed during the police interviews and had forgotten that she had fallen asleep in the bath. It was suggested that Mrs Anthony had invented this to explain the time between Mr Anthony's leaving and the 999 call.
51. Mrs Baker gave evidence that Mrs Anthony had told her she was in the bath when the alarm went off. She ran downstairs, grabbed Michael, went to the front door, tried to resuscitate him and collapsed on the doorstep. Mrs Anthony was shown a photograph of the bathroom taken on the day after Michael's death. She was asked who had pulled the plug out of the bath and wound it round the taps. She could not help. She insisted that she was in the bath when the crisis happened to Michael.
52. The hospital managed to restart Michael's heart, but he was not breathing spontaneously and the lack of oxygen to his brain had caused profound damage. After discussion with Mr and Mrs Anthony, the life support machine was switched off and Michael was allowed to die peacefully. Mrs Anthony saw Michael after the life support machine had been switched off. She asked for a lock of hair. She did not stay at the hospital and was notified by telephone when Michael died. She said she could not have cope with staying. Mrs Baker said that Mrs Anthony was a brilliant mother with Michael. She was very close to him and coped perfectly well. Mrs Baker said that Michael had not been very well between January and March and that she had taken Michael for his injections because Mrs Anthony was terrified of needles and hospitals.
53. There was evidence from staff at the hospital that Mrs Anthony was detached when Michael was in hospital. She did not express a natural interest and did not want to care for him as most mothers would. There was evidence that on one occasion Mrs Anthony visited, but said she did not have time to feed Michael and then left. Mrs Anthony and Mrs Baker denied this.
54. On the other hand, Patrick Letherby, the acting senior charge nurse, stated that Mrs Anthony appeared to be shocked and stunned when Michael was brought into the accident and emergency department on 19th March. Mr Simmons, the paramedic, also stated that Mrs Anthony was crying and looked very distressed. Dr Sleap, the anaesthetist, stated that Mrs Anthony came into the unit on two or three times while Michael was being treated. Although she did not stay very long, she seemed distressed and was crying.
55. Expert Evidence. The post-mortem examination was conducted by Dr Ashworth, consultant paediatric pathologist at Bristol Children's Hospital. He had carried out several hundred post-mortems on babies less than 12 months old. He found a button in Jordan's stomach. He had never before found a foreign body in a baby of Jordan's age. This was unlikely to have caused her death because it was in her stomach and must therefore have been swallowed while the baby was alive. Once it reached her stomach, it could not block her airways. He found no natural cause of death and no evidence to support the conclusion that the death was unnatural. He was not prepared to describe Jordan's death as a cot death or SIDS (Sudden Infant Death Syndrome) for a number of reasons. These included her age at death, 11 and a half months, as well as the previous history of apnoea attacks and the absence of petechial haemorrhages on the thymus gland. He therefore concluded that this was a sudden unexpected death in infancy (SUDI). However, he told the coroner's officer that he found nothing to suggest anything untoward and suggested that the death should be described as a sudden death in infancy. At trial he suggested that it would have been more accurate to describe the cause of death as "unascertained".
56. After Michael's death Dr Ashford's findings in respect of Jordan were reviewed by Professor Berry, paediatric pathologist practising at Bristol Children's Hospital and a lecturer at the University of Bristol. Professor Berry had taken a special interest in cot death and unexpected deaths in early childhoods and had investigated these matters for a number of years. He agreed with Dr Ashworth that the cause of Jordan's death was unascertained.
57. We simply pause to notice that the use of this word and its correct application in cases where infants have died has changed over recent years. A number of different words have different meanings attributed to them now than they had attributed to them ten years or so ago. In the result, however, nothing turns on the differences in the context of this appeal. We should also add that Professor Berry, like the other expert witness, was giving evidence on the basis of what was known then, that is 1997/8, rather than what is known now.
58. In relation to Professor Berry he commented on the finding of the button in Jordan's stomach, saying it was unusual, but would not have caused her death because it must have been swallowed while she was alive. If we may say so now, a more important question, but one which was unanswered, was how Jordan came to swallow the button.
59. The post-mortem examination on Michael was performed by Professor Berry. Professor Berry could not find the natural cause of death and concluded it should be characterised as unascertained. His analysis of Michael's death took place in the context of his review of the post-mortem on Jordan. There were a number of unusual features of Jordan's death and he would not then (1997) apply the phrase "cot death" where more than infant in the same family had died. In any event in relation to Michael he noticed that there were no petechial haemorrhages on the thymus, the absence of which was unusual in a cot death suffered by a baby of four months. There was evidence of an earlier apnoea attack before Michael's death witnessed only by the appellant. In addition, Michael died very shortly after his discharge from hospital in apparent good health and in the early evening, whereas most cot deaths occur in the morning after a lengthy sleep. He attached no significance to the absence of injury or marks around the baby's nose and mouth because marks were not found in babies smothered with a soft object. Professor Berry suggested that if the death of each child was looked at in isolation from the other the deaths were properly to be described as unexplained or unascertained, not as cot deaths. He did, however, accept that in Michael's case many features normally attributed to cot death were present. He went on, however, to describe that the:

"... possibility of one mother having two unexplained deaths, in other words lightening striking twice, was most unlikely and outside his experience."

60. His conclusion was that it was most likely that both babies had been suffocated. He therefore recommended that the deaths be reviewed by paediatricians who specialised in infant death cases.
61. Professor Milner of Guy's and St Thomas' Hospital, now merged with King's, is a specialist in respiratory problems involving children, with a particular interest in apnoea in children. Apnoea is commonly found in premature babies up the age of 12 months, usually when the baby is asleep. It very rarely ends in death and the child responds to being shaken. There was a previous episode of apnoea in less than 5 per cent of cot deaths. Given that there was a 1 in 20,000 chance of a cot death occurring in a child aged over ten months, the chances of a cot death occurring in an 11 month old baby who had suffered a previous apnoea death were 1 in 400,000. He concluded that Jordan had suffered repeated suffocation and had failed to recover from the last such occasion.
62. In relation to Michael Professor Milner accepted that this death had features similar to and consistent with cot death, first because he was much younger than Jordan when he died and he died in winter and apparently at the end of a sleep when the chances of cot death peaked. However, Professor Milner was concerned about the reported apnoea episode on 10th March and the fact that after nine days of observations in hospital Michael was discharged in good health. He had not experienced a case of a child going home well and then dying quickly of a natural cause. In the light of his concerns about what had happened to Jordan, the evidence of the discharge from hospital and the breakdown of the marriage immediately before Michael died, Professor Milner concluded that it was very likely that Michael had been smothered, probably having suffered two episodes of suffocation, the last of which caused his death.
63. Professor Meadow, consultant paediatrician for over 25 years, had made a special study of children who had been smothered or poisoned and had extensive experience in the assessment of cases of child abuse. He reviewed the medical notes on Jordan and Michael respectively, together with the other background information. He considered the case of each baby separately. He concluded that neither death could properly be described as a cot death, or sudden infant death syndrome. He concluded that each death was typical of smothering.
64. Dealing with Jordan first: the circumstances of her life and death did not demonstrate that she was likely to have died from natural causes. She was said to have suffered numerous apnoea attacks. It was unusual for numerous such attacks to be reported without a cause for them being found. Two of them, on 2nd March and 23rd August 1995, were severe events. Jordan's blood showed raised levels of glucose and white cells and medical staff who treated her found her to be blue and floppy. The apnoea attacks were not reported by her grandparents or friends or hospital or when the appellant was in the company of others. She was the only person who saw the start of any reported episode. She gave different descriptions of these events and in itself that raised questions about the genuineness of her account. The hospital notes did not show any attacks reported to the general practitioner before 20th March, although the appellant stated that they had been happening for some weeks. There was nothing in the evidence to show that Jordan had a pre-disposition to suffer from apnoea attacks and no cause for them could be found.
65. On 2nd January 1996 Jordan was brought into casualty. She had a cough and a cold and was said to be bringing up blood. This phenomena in babies of her age was rare. It did, however, manifest itself in babies who had been smothered. Jordan had failed to thrive in her early months, failing to gain weight as expected or to achieve her anticipated height. There was no organic explanation and he thought that it stemmed from an absence of care and love, a common feature in babies who were subsequently smothered. He also noted that Jordan was 11 and a half months old at her death. At this age babies have become very much more robust and better able to fend for themselves than younger babies, and so death from natural causes was less likely. He also noted that Jordan had died in the early evening and that research had shown it was uncommon to find death from natural causes occurring at that time. They were more commonly discovered in the morning.
66. The final consideration was that Jordan was reported to be very well shortly before her death. It was unusual for a baby to be well immediately before a natural death, whereas it was commonly found that a baby who had been smothered had been well immediately before death. Jordan died two weeks after discharge in good health from hospital and the death from natural causes in such circumstances was unusual.
67. Professor Meadow addressed the post-mortem findings. He agreed with Dr Ashworth that the button found in Jordan's stomach could not have choked her to death because it would have stayed in the airwaves without travelling into the alimentary channel. It was doubtful that Jordan could have eaten a button herself, although it was possible that she could have picked it up and put it in her mouth. On the whole, babies aged less than 12 months rarely swallowed foreign bodies. The absence of any marks or injury to the lips or mouth was not inconsistent with smothering. Such injuries are found in only something like a quarter to one third of cases of death by smothering.
68. Professor Meadow then turned to Michael. From the circumstances of his life and death it was not likely that his death was natural. He was in fact typical of a smothered child. He was reported as suffering an apnoea attack on 10th March. If so, that was unexpected as he had been in good health. It was unexplained and no cause for it was found during the seven days he was in hospital being closely monitored. He died in the evening after a period of sleep and within a few hours of being discharged from hospital where he had been assessed as being in good health. He had never heard of such timing of a death from natural causes. However, death soon after discharge from hospital in good health was found in many cases where a child had been killed.
69. The fact that Michael's death was a second death in the same family was very important. Professor Meadow was confirmed in his opinion that Michael's death was typical of smothering by the fact that there are "such incredibly long odds" against two children in the same family dying of natural unexplained causes. It was well recognised that if one child was smothered there was a heightened risk that subsequent children would be smothered too. He did not expressly quantify the odds before the jury, but the impression he was trying to convey by this evidence may be gleaned from the fact that in a voir dire he had stated:

"Natural cot death has an incidence now of about 1 in 1,000, so the chance of natural cot death happening twice in a family is 1 in 1,000 times 1 in 1,000, which is 1 in 1,000,000. It is extraordinarily unlikely ..."

70. The defence called Dr Rushton, a paediatric pathologist with many years experience and a lecturer at Birmingham University, to give evidence. He examined the various medical and post-mortem reports and carried out a second post-mortem on Michael. He also gave evidence about the circumstances of Jordan's death. He began by addressing the results of the post-mortem on Jordan. He said that he may have concluded that this was an unascertained or sudden death in infancy, but that a lurking suspicion would remain because it was very unusual to find an item in the baby's stomach. However cotton was found in the holes of the button which could have obstructed the airwaves and got into the stomach after death as a result of attempts at resuscitation. It was impossible to prove that the button was not in the upper airwave as a foreign body there could cause death with likely signs of asphyxia. If the baby was picked up, squeezed and then straightened, particularly in combination with attempts at resuscitation, its stomach contents could be transferred to the lungs and then washed down into the stomach with what was going up and down the oesophagus. He accepted that he was proposing a series of unlikely occurrences and agreed that it was unusual to find a foreign object in the stomach of an infant and also that there was, as Professor Meadow suggested, higher incidences of foreign objects in the stomach of children who had died of natural causes.
71. In his view the absence of petechiae on Jordan's thymus were not inconsistent with cot death as no such petechiae were found in one in three deaths classified as cot death. He also agreed that cot death usually occurred before a child reached 12 months and that Jordan's death was therefore at the extreme end of the age range for a natural death. In his view the significant possible contra-indication to cot death arose from the history of previous apnoea attacks. Where the reported episodes and the later death occurred in the presence of a single person who gave different accounts of the incidents, suspicion that death was unnatural increased. Like the pathologist called by the prosecution, Dr Rushton would have sought the opinion of a paediatrician, but in the result none was called for the defence.
72. Dr Rushton considered that Michael's death could be more readily ascribed to a cot death than Jordan's death. This death was properly characterised as unexplained. He noted that Michael had not gained in weight while he was in hospital between 10th and 19th March, although the records reported a gain of 10 grammes before discharge. In any event, he thought that any such gain would have been insignificant. He noted the bleeding in Michael's bowel, attributed by Professor Meadow to the time the child had spent on the life support machine. However, he was concerned about the possibility of bowel infection and would have carried out a bacterial test which was not done. The bleeding might have indicated that Michael was unwell when discharged from hospital on 19th March.
73. Dr Rushton concluded that it was possible that both babies suffered from apnoea attacks due to unidentified natural causes. This was not directly supported by any evidence, but he suggested that future scientific advances might provide an explanation. It was also possible that both children had died of abuse, probably as a result of smothering. It was also possible that the causes of death were unrelated and that Jordan died because of an obstruction to her breathing by the button, or possibly, although he had not included it in his report, following a vagal reflex when her breathing was obstructed. Equally it was possible that Michael's death was a natural cot death. He agreed that nothing that was found was inconsistent with the babies having been smothered and he could not positively explain how either child had died.
74. That concludes a review of the evidence which was before the jury.
75. Save in the sense that he applied the law as it then appeared to be, rather than as it has now been stated, neither Astill J's rulings nor his summing-up are criticised. On the evidence called before it, the jury was fully entitled to convict the appellant of murder. This appeal depends on fresh evidence and consideration of the proper approach to the evidence before the trial jury in the light of the decision of this Court in Cannings.
76. The Commission rejected the suggestion made on the appellant's behalf that this case is indistinguishable from Cannings. We agree with the Commission. Despite the similarities arising from the fact that we are concerned with two infant deaths, this is a very different case. As the summary of events demonstrates, the conviction did not depend exclusively, or almost exclusively, on a disagreement between distinguished and reputable experts. There was indeed cogent and disturbing evidence, additional to the expert medical evidence, which supported the allegations made against the appellant and her own account of events was inconsistent and at times self-contradictory. The appeal of Mrs Cannings proceeded on the basis of positive evidence that she was a loving and caring mother without any unusual or troublesome personality or psychiatric problems. The extraneous evidence which was said to support the conclusion that she was responsible for the deaths of her children was, at worse from her point of view, negligible, and on proper analysis at least counterbalanced by extraneous evidence which suggested that she would not have harmed, let alone killed, them. The case against her depended exclusively on expert medical evidence and in particular, in our then current state of knowledge, of what the court regarded as the fallacious approach to the fact of more than one unexplained infant death in the family.
77. It is perhaps necessary to emphasise that we have no difficulty in understanding the proposition that nowadays two infant deaths from natural causes in the same family is a rare occurrence. The question is what safe inference, if any, may be drawn from that fact. It seems to us that no inference can safely be drawn without simultaneously giving full weight to the additional rarity that a mother would act so unnaturally as to smother two of her babies. We acknowledge that this catastrophe sometimes happens, but, unless that second fact is given equal weight with the first, any inference based on the first taken in isolation from the second is likely to be flawed.
78. Recent research has wholly undermined the conclusion to be drawn from the coincidence of the deaths two of infant children in the same family. As was noted in paragraph 141 in Cannings:

"'... the occurrence of a second unexpected infant death within a family is not a rare event and is usually from natural causes'."

79. There has recently been published in The Lancet Vol 365, 1st January 2005, pp 29-35 an article entitled "Repeat sudden unexpected and unexplained infant deaths natural or unnatural". Much of this material was before the Court in Cannings, but the article itself had not been published. We quote:

"Statements that the risk of recurrence of SIDS is incredibly small are intended to suggest that the probability of such deaths being natural is zero. Selective media reporting can endorse this misconception. Our data suggests that second deaths are not rare and that the majority, 80 to 90 % (40 and 45; or 18 in 20) are natural. Families who have experienced three unexpected deaths also occur. The study included two families in which there were two CONI deaths, one triple SIDS and one triple filicide.

This study is the largest follow-up of families who have had a sudden unexpected and unexplained infant death. The CONI Programme has been available in over 75 % of districts in England, Wales and Northern Ireland since 1994, and we would know if many eligible mothers declined to participate. We have, therefore, probably included the majority of families in which there have been two or three sudden and unexpected deaths in recent years. Consequently, although child abuse is not uncommon, from the best available data, we believe that the occurrence of a second or third unexpected death in infancy within a family, although relatively rare, is in most cases from natural causes."

80. In Cannings we endeavoured to explain the principle in the context of the appeal then before us and suggested that the correct line of reasoning in cases of this kind was that:

"Multiple unexplained deaths in the same family are indeed rare, but that if there is nothing to explain them, in our current state of knowledge, at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths. The exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, it appears to us to coincide with the views of a reputable body of expert medical opinion."

81. Properly understood Cannings is not authority for the bare proposition that a dispute between reputable experts in a specialist field should produce an acquittal. In Cannings considerable significance was attached to the then recent research, not least because it served to underline that some of what was taken, if not for granted, then as read, for the purpose of the Cannings trial, no longer applied, or could not longer sustain the weight of inference formerly imposed on it by the experts. It is important to emphasise that some of the passages in the judgment in Cannings are of value, not because they happen to form part of the reasoning process which led the Court to its conclusions in that particular case, but because the judgment recalls areas of evidence covered by recent research which undermines former certainties. However, care must be taken not to transpose judicial comment on matters of evidence in the Cannings case into formal judicial precedent in a different case where the combined effect of the evidence, whether extraneous to or linked with or arising from the medical evidence, is different.
82. This particular case is not an appropriate appeal in which to examine the full implications of the decision in Cannings. The next case in our list, R v Kai-Whitewind, is likely to require us to analyse the decision, and this judgment should, therefore, be read subject to any observations we may subsequently make in the case of Kai-Whitewind.
83. In the present case, in the interests of justice for the purposes of section 23 of the Criminal Appeal Act 1968, we have admitted in evidence reports by Dr John Glasgow, consultant paediatrician, formally at Queen's University, Belfast, dated 23rd June 2004, Dr Paul Johnson, consultant clinical physiologist at the John Radcliffe Hospital, Oxford, dated 26th June 2004, Dr Martin Ward Platt, consultant paediatrician at the Royal Victoria Infirmary, Newcastle, dated 27th June 2004, agreed notes of a meeting attended by Dr Glasgow, Dr Johnson and Dr Ward Platt at the premises of the Commission on 7th July 2004, a joint report, described as the collaborative report, by Dr Glasgow, Dr Johnson and Dr Ward Platt, dated 12th September 2004. This collaborative report is not an agreed report as such; in particular Dr Johnson has expressed views which are not shared by the other two experts. However, there are significant areas of agreement between all three. A report from Professor James Morris, consultant pathologist, dated 19th February 2004, with a letter from him dated 19th October 2004 and a further report from him dated 30th November 2004. In addition, we have admitted a letter from Professor Berry dated 11th August 2004.
84. Finally, we reminded ourselves of the research since the trial of the appellant, which was before the Court in Cannings, the Care of Next Infant Programme, now brought to further fruition in the article in the Lancet, to which reference has already been made, as well as the confidential enquiry into still births and deaths in infancy, sometimes described as CESDI SUDI research on sudden unexplained death in infants.
85. As we have already commented, the Crown has not contested the appeal. It will be allowed on this narrow basis. The conclusion that the deaths of these two children was unnatural and the consequent convictions depended substantially on the fact that there were two such deaths in the same family. Although there was evidence to support the conclusion that each death taken in isolation may have been the result of deliberate inference with the child, stronger in the case of Jordan than in the case of Michael, the reality is that of itself the rarity of the two infant deaths in the same family underpinned to the views formed by and opinions expressed to the jury by the experts called by the Crown. It was critical to the evidence that they gave and must inevitably have permeated the way in which the jury would have approached this evidence. In the light of the decision in Cannings that approach would have been erroneous. In those circumstances, it is unnecessary to go through various of the detailed matters arising in this case, for example in the context of buttons and coughing up blood, or the time of day, or the condition under which a child may suffer a natural death shortly after discharge from hospital when apparently healthy. We shall address the issue of the two deaths in the family.
86. We shall not deal with the matter from the detailed transcript of the evidence of each of these witnesses. We shall just take the judge's summing-up. Thus in reminding the jury of Professor Berry's evidence, the judge told the jury that Professor Berry had said:

"... if the death of each of these children is looked at without reference to the other, their deaths are unexplained. So looking at them entirely separately, they are not cot deaths, they are unexplained deaths. Therefore, although he [that is Professor Berry] accepted that if one baby in a family dies from a cot death, the second and subsequent babies have an increased risk of doing the same, it does not apply here, he said, because Jordan's death was not a cot death. It only applies if the first baby was a cot death when you are looking at the other, and this one was not.

He then considered the possibility of one mother having two unexplained deaths. In other words, lightening striking twice: he said it was most unlikely and outside his experience.

He therefore arrived at the conclusion that it is most likely that both babies had been suffocated."

87. Professor Milner spoke about how his doubts about Michael's sudden death and the conclusion that it was unnatural, as the judge put it in his summing-up:

"... arose from the anxiety surrounding Jordan's death."

For the reasons he had given, the judge told the jury, his doubt about Michael's sudden death arose from the anxieties surrounding Jordan's death and stresses concerning the marriage breakdown, and the brief interval between Michael's discharge from hospital and death, and he arrived at the conclusion that it was very likely that he too was smothered by the defendant.

88. Professor Meadow believed that the evidence showed that the death of each child arose from smothering, but, as the judge summarised his evidence to the jury:

"So far he has come to a conclusion about these children only considering the matters that concern each child and not considering matters that concern the other child. But he goes on now to do so. He said ... having looked at the deaths of these two children quite separately from each other and having come to the conclusion that the likelihood is that both were smothered, it is important to go further and consider the fact that Michael's death was a second death, in other words to consider the fact that these two young babies were brother and sister. The fact that Michael's death was a second death is a very important point, he said, and it made people look more carefully at his death because there are such long odds against two children dying from natural, unexplained causes, coming from the same family."

89. We have already noted the effect of the decision in Cannings and the research to date, but in the collaborative report itself reference is made to how much was made of the coincidence said to arise from Michael's death:

"Stripped down, this argument goes as follows: 'We find that several unlikely things have happened close together. The likelihood of this coincidence is very low. Therefore it is probably not a coincidence, and my alternative explanation is more likely to be the right one'. ... A careful distinction had to be made between pattern recognition ... [which] is a fundamental tool of expert clinicians (although increasingly this can and should be substantiated by a physiological measurement): and discussions of coincidence/chance/probability, which seem to emerge from the supplementary report, and can create seriously fallacious arguments."

90. Later, in relation to figures the collaborative report includes this passage:

"We agree ... that this is fallacious, but for a much simpler reason ... [here is the reason]: namely that multiplying one probability by another is only valid if the two events are independent (in both a statistical and a biological sense). Within a family, events such as cot death are clearly not 'independent' of one another, and therefore the probabilities cannot be multiplied together."

91. It is in those circumstances that we turn to the use of the statistical evidence given by Professor Milner and, by implication at any rate, Professor Meadow. Professor Milner's evidence is open to objection on the basis that his analysis that the chances of a cot death in a child of 11 and a half months, who had sustained a previous apnoea attack, is 1 in 400,000, rather begs the question whether the cause of Jordan's death was properly to be described as smothering and assumes that unless it could be classified as a cot death smothering provides the appropriate alternative. In any event, however, the statistic itself derives its conclusion from characteristics that are not independent of each other. Of itself the fact that a sudden infant death occurs at 11 months is a rare event, but that tells us nothing about whether the child was smothered or died from natural, even if unexplained, causes.
92. At the same time Professor Meadow's evidence about the incredibly long odds against the two children in the same family dying of natural unexplained causes would now have been wide open to criticism in cross-examination, not least because of the flawed statistical evidence he gave at the trial of Sally Clarke, which, again as was noted in Cannings, served to undermine his reputation and his general authority as a witness. In short, in highly material respects confidence in statistical, or semi-statistical, if that is the appropriate way to describe the use of the word "odds", evidence given by the two most important medical experts called by the Crown is now significantly undermined. Yet we have little doubt that for perfectly understandable reasons evidence of this kind would have been deployed by the jury to reinforce and support the Crown's case. In essence, therefore, the essential thrust of the Crown's case against the appellant at trial has been significantly undermined.
93. We note the evidence obtained from Professor Morris which suggests a specific natural explanation for Michael's death, namely bacterial infection, clostridium perfringens septicaemia and/or toxaemia. We have not heard the evidence of Professor Morris and we immediately note that his conclusion was contradicted by two of the three experts who produced the collaborative report. Therefore Professor Morris's opinion may not in the end have withstood close analysis, but there has been no such close analysis. That evidence is here before us. If the cause of Michael's death is in doubt, then in this particular case it would be bound to have had a knock-on effect on the case involving Jordan.
94. Having examined all the evidence at trial, and in the light of the latest research, the collaborative report expresses a joint view. We can summarise it in this way. Notwithstanding the belief of the doctors, which, if we may say so, we fully understand, that the appellant herself was a "wholly unreliable informant", they concluded that although no natural disorder in the two children was discovered "either clinically or at autopsy" the analysis of the clinical records leads to the conclusion that there are good reasons to believe that unnatural death was not the only conclusion which could be drawn.
95. We take that observation to mean that in the case of each child, Jordan and Michael, taking the medical issues in isolation from all the remaining circumstances, these experts would entertain a reasonable doubt whether death had resulted from smothering. Suffice it to say that in the light of our judgment, based on a review of the validity of the conclusions expressed at the trial, it is unnecessary to examine these views further, or to reach any conclusion of our own about them. Given the uncontested nature of this hearing and the fact that none of this evidence has in the result been tested before us, we shall not do so.
96. The logical conclusion of an analysis of the fresh evidence now before us as it impacts on the evidence which was before the jury at trial can be summarised in this way. If this case were to have proceeded today, rather than in 1998, looked at overall, the medical evidence called on behalf of the Crown would have appeared less compelling than it must have seemed at trial, and there would have been more persuasive expert medical evidence available to the defence. We agree with the analysis of the Commission itself that:

"... the balance of the medical evidence appears ... to be much less unfavourable to Mrs Anthony than was the case at trial."

97. Notwithstanding the presence of disturbing features about the appellant's behaviour and her account of events, we have concluded that if the evidence available in the unchallenged form in which it is available to us had been available at trial, the decision of the jury might well have been different, and, in any event, if the judgment of the Court in Cannings had been available to the judge he would have ensured that the evidence given by the experts would have taken a different route, and would inevitably have summed the case up differently. In these circumstances, we are persuaded that the convictions are unsafe and must be quashed.
98. We have been extremely concerned whether following the quashing of the convictions the interests of justice as a whole do not require us to order a new trial. Much of the critical evidence is still available. The fresh medical evidence could be put into the context of the evidence extraneous to it, and analysed as a whole. However, the case is now an old one. It is many years since Jordan died and some years since Michael's death. A witness called on behalf of the appellant at trial to whom a great deal of importance was obviously attached, her mother, has died. In the result, in any event, the Crown did not invite us to order a new trial and, not without some hesitation, we have decided not to do so.
99. LORD JUSTICE JUDGE: Thank you all for your courtesy in listening so quietly. Mr Tully.
100. MR TULLY: Two matters, my Lord, if I may, one is to invite the discharge of the appellant.
101. LORD JUSTICE JUDGE: Yes, your client will be discharged. She is discharged.
102. MR TULLY: My Lord, I am afraid there are rather tedious topics of an ancillary nature that I need to raise concerning costs.
103. LORD JUSTICE JUDGE: Just wait one moment. We had better tell Mr Cooper. Mr Cooper, we want to analyse in the next case the issue of the evidence that is starting at 8 o'clock in the morning.
104. MR COOPER: My Lord, so do I.
105. LORD JUSTICE JUDGE: Can you wait?
106. MR COOPER: Of course, my Lord.
107. LORD JUSTICE JUDGE: Mr Tully.
108. MR TULLY: My Lord, the next matter I raise is, in the context of that we have been discussing today, may seem rather tedious as I said. Forgive me for raising it, but it is of some interest at the very least to those who sit behind me.
109. LORD JUSTICE JUDGE: Yes, you are not legally aided at the moment for your solicitor.
110. MR TULLY: He is not.
111. LORD JUSTICE JUDGE: Is that what this is about? You are going to ask for an order for defence costs.
112. MR TULLY: I am. My Lords have a power under section 16(4) of the Prosecution of Offences Act to make a defendant's costs order. If you were to do so it would ordinarily be under section 16(6) of that Act and it would be for such amount as is reasonably sufficient to compensate, that would be the appellant, for the costs properly incurred.
113. My instructing solicitor could have come under the auspices of the legal aid order that was made in respect of myself and Mr Chadwin. The reason he could not avail himself of that opportunity was because he does not have a legal aid franchise and therefore he could not come under that umbrella.
114. LORD JUSTICE JUDGE: Mr Dunkels, does the Crown have anything to say on this particular point?
115. MR DUNKELS: No, my Lord.
116. LORD JUSTICE JUDGE: Thank you. Sit down for a moment, Mr Tully. (Pause). Mr Tully, we are not unsympathetic. First, if the matter had been in our hands -- my hands I suppose because I dealt with the various management hearings -- we should have said this was a case in which you and Mr Chadwin should have had a solicitor to help you with the preparation and the conduct of the appeal. So that is point number 1. Point number 2, is in principle, the appeal having succeeded, there should be an order in favour of the defendant in relation to the costs which are not covered by legal aid. So far so good. But what is the nature of the arrangement between your client and your instructing solicitor? At the moment she has not incurred any costs.
117. MR TULLY: My Lord is exactly right. The issue in the case at stage, there are specific provisions under the legislation indicating that where a defendant's costs order is made it is made to cover such incidental expenses as may be incurred by the defendant as opposed to the costs of the legal representation. If my Lord were to take the view that within the terms of 16(6) an amount as reasonably sufficient to compensate the costs of legal representation, if the Court came to the view that her having an instructing solicitor for counsel appearing on her behalf was a cost properly incurred by her, then subject to the Practice Direction of last year, which is reported in Archbold at chapter 6-102, that is on page 890. The -- may I just try to set --
118. LORD JUSTICE JUDGE: Sorry, page?
119. MR TULLY: 891, my Lord, sorry. My Lord, can I just set out, clearly what I am inviting you to do so is to make a defendant's costs order and within the provisions of the Practice Direction, as I read it and I will come to it in a moment, there is a provision that allows for the court to make comment as to what costs might fall within such an order and I will invite you to say that within this particular defendant's costs order the costs of her instructing solicitor would be a proper disbursement.
120. MR JUSTICE LEVESON: The question my Lord was asking was whether there was an arrangement whereby the appellant was to pay her solicitor.
121. MR TULLY: I think the straight answer to that, my Lord, is yes.
122. LORD JUSTICE JUDGE: We don't want to trespass on legal professional privilege and so on, but surely we can be told without breaching that whether or not your instructing solicitor told his client that he would continue to act for her, and when she asked "and how I am going to pay you because I haven't got any money", he said something which amounted to an agreement between them that she would pay. Surely we can be told what happened. Your solicitor wants to say something to you.
123. MR TULLY: My Lord, forgive me a moment. (Pause). My Lord, I think there is an expectation that if there is no other funding available for the instructing solicitor that the buck would stop with the lay client, that she would be responsible for those costs. As to how she is going to meet them, is an entirely different topic.
124. LORD JUSTICE JUDGE: Yes, whether your solicitor would enforce them against her, take proceedings to enforce it.
125. MR TULLY: To the extent of such under funds as she will be in possession now or in the future. Can I also just preface my comments on this topic in this way, my Lord, because one thing the Court may care to consider on this issue is the following point. That if the Court had been encouraged to make an order covering a solicitor and it could not have been Mr Hawks who instructed me, in February or thereabouts we would have sought to have brought in a fresh solicitor who would not have had conduct of the proceedings back 1998.
126. LORD JUSTICE JUDGE: You don't need to persuade us about this. If we can make the order, we will make it, but just show us that we can.
127. MR TULLY: I think, my Lord, that you can and the reason I say that is this. The costs provisions you need to be aware of are as follows. Section 16(4) is set out in Archbold at chapter 6 paragraph 5 on page 856. That is our starting point. That provision contains at page 856 this, subsection (4) of section 6:

"Where the Court of Appeal allows an appeal against conviction ... the Court may make a defendant's costs order in favour of the accused."

That is our starting point.

128. I also have to draw to your Lordships' attention this technical, and that is the reason why I said it might be tedious, page 853.
129. MR JUSTICE LEVESON: Before you go past 856, isn't the point that my Lord raised with subsection (6), that a defendant's costs order to be the payment out of central funds to the persons in whose favour the order is made -- that is your client -- of such amount as the court considers reasonably sufficient to compensate him for expenses properly incurred by him. so the point is, has she incurred enforceable expense? If she has I think my Lord has suggested that we are sympathetic, but if she has not then there are difficulties.
130. MR TULLY: My Lord, she has. I do not suggest that they can be quantified to the extent that she has been presented with a bill, or anything of that kind, but there is without question an agreement as between them, which has been made known to me, that she has agreed that she is responsible for the costs of her solicitor.

(Pause)

131. MRS JUSTICE HALLETT: I was looking and referring my Lord to, have you had a chance to look at the case of R v Miller? Once it was shown that the defendant was the client of the solicitor then a presumption arose that he was not the person liable for the costs.
132. MR TULLY: My Lady, I am extremely grateful. I was aware of the authority and in fact Mr Hawks has been kind enough to draw it to my attention previously.
133. LORD JUSTICE JUDGE: You are telling us that there was no express or implied agreement binding on Mr Hawks that the defendant would not have to pay your costs in any circumstances? Yes, all right.
134. MR TULLY: Very well.
135. LORD JUSTICE JUDGE: Thank you for your help, Mr Hawks, and thank you for your help, Mr Tully. Give our best wishes to Mr Chadwin. Mr Dunkels, thank you very much. I have just got one word, please. I am addressing, though I know Mr Cohen is sitting two rows behind you. I think in cases where we have convictions for murder leading counsel ought to be asked to look into the case rather earlier than you were in this case. These are very sensitive and difficult cases and it is just as well to have the leader who was involved in the trial having a look at it at any rate.
136. MR DUNKELS: My Lord, yes. It is a bit more complicated than that, but now is not probably the time for an explanation.
137. LORD JUSTICE JUDGE: I have no doubt, but we won't be happy if next time one of these cases comes, leading counsel's skeleton argument is before us at 10 o'clock in the morning, even if the appeal is to be conceded. We do need to know why. So as long as it doesn't happen again, Mr Dunkels. You sort it out with Mr Cohen and he will sort it out with you.
138. MR JUSTICE LEVESON: Perhaps we shouldn't assume that you weren't involved earlier even if you weren't instructed.
139. MR DUNKELS: The papers were sent to me. I was away. By the time I returned I was notified that a decision had been taken and was asked to return the papers which I did.
140. LORD JUSTICE JUDGE: All right. Thank you very much.
141. MR DUNKELS: And there was some confusion as to what was to happen thereafter.
142. LORD JUSTICE JUDGE: Thank you for your assistance.