WORTHY OF FRAMING! NDP JUSTICE CRITIC PETER KORMOS' UNBRIDLED TAKE ON CHARLES SMITH DURING DEBATE OVER REFORMS TO CORONER'S ACT; IT HAD TO BE SAID.

"SMITH DIDN'T WORK IN A VACUUM. WHAT ABOUT THE CORONER? WASN'T THE CORONER'S OFFICE CONCERNED? DURING THE COURSE OF, IF NOT THE FIRST OR THE SECOND OR THIRD OF THOSE 24 YEARS, AT LEAST WELL INTO THE 15- AND 20-YEAR RANGE, WASN'T THE CORONER'S OFFICE A LITTLE CONCERNED ABOUT HOW EFFECTIVE SMITH WAS AT PROVIDING EVIDENCE THAT SUPPORTED THE CROWN'S CASE AND DIDN'T SUPPORT THE DEFENCE ARGUMENT? WHAT ABOUT HIS COLLEAGUES? WHAT ABOUT OTHER PATHOLOGISTS? WHAT ABOUT OTHER PEOPLE IN THE MEDICAL PROFESSION? WHAT ABOUT THE HOSPITAL FOR SICK KIDS, WHO KEPT HIM IN THEIR EMPLOY?
SMITH WASN'T A SOLO OPERATOR, AND ALTHOUGH SMITH HAS BEEN APPROPRIATELY CONDEMNED-I ONLY WISH HE COULD SPEND A PORTION OF THE JAIL TIME HIS VICTIMS HAVE-WE HAVEN'T RECOGNIZED THE CULPABILITY OF OTHER PLAYERS IN THE SYSTEM."...

"WHILE IT WASN'T GOUDGE'S JOB TO INDICT SMITH, HE, IN A VERY CAREFUL AND JUDICIALLY TONED COMMENT, DID AS MUCH. GOUDGE WROTE: "... SMITH WAS ADAMANT THAT HIS FAILINGS WERE NEVER INTENTIONAL. I SIMPLY CANNOT ACCEPT SUCH A SWEEPING ATTEMPT TO ESCAPE MORAL RESPONSIBILITY." IN OTHER WORDS, THE INFERENCE THAT YOU DRAW FROM THAT COMMENT IS THAT GOUDGE SAID THESE WERE INTENTIONAL AND THAT SMITH KNEW FULL WELL WHAT HE WAS DOING IN HIS ZEAL TO CONVICT PEOPLE, IN SMITH'S ZEAL TO PANDER TO HIS BOSSES, IN SMITH'S ZEAL TO BE SEEN AS A CAPED CRUSADER, IN SMITH'S ZEAL TO BE SEEN AS A FRIEND OF THE VICTIM, AND IN SMITH'S ZEAL TO BE SEEN AS A FRIEND OF THE POLICE AND THE PROSECUTION."

PETER KORMOS: ONTARIO LEGISLATURE DURING DEBATE ON REFORMS TO CORONER'S ACT;

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I am a huge fan of New Democratic Party justice critic Peter Kormos;

He has an enormous sense of justice, supreme intelligence, and the ability to articulate succintly to the people of Ontario the aspects of our justice system which trouble him;

Mr. Kormos was in top form when he addressed the legislature during the debate over the third reading of Bill 115 in which the McGuinty government sets out to reform the Coroner's Act because of the abuses committed by Dr. Charles Smith and his protectors - and the findings of the Goudge Inquiry; Here are some of his remarks:

"Look, the elephant in the room is this fellow Charles Smith," Kormos told the legislature;

"The Goudge inquiry was all about this incompetent liar's contribution to the unjust conviction of countless people, many of them parents," he continued;

"I accept the Goudge recommendations. I'm confident because I've heard no criticism of them from the legal community. Members of the defence bar especially, similarly, support the implementation of the Goudge recommendations. But I have serious, serious concerns, notwithstanding what Goudge says. Charles Smith, a liar? Goudge said so. Incompetent? Goudge said so. A bit of a whack and a flake? Goudge said so. Not his words; he used far more judicial language, but I'll put it in language that perhaps we're all a little more familiar with.

This guy Smith, for 24 years, while working for the Hospital for Sick Kids just down the road, lied and bungled his way through countless prosecutions of people charged with injuring and, more tragically, killing children, babies-countless unjust convictions. We're not talking about people who are sentenced to a couple of weekends in the local lockup; we'r e not talking about people who are sentenced to house arrest; we're talking about people who, almost inevitably when you murder a child, are sentenced to penitentiary time, where they do what is called colloquially "hard time." Let me tell you, when you're a baby killer, you're pretty darned close to the bottom of the ladder. Even in protective custody, you're a victim. Some of those people have been successful in having their convictions overturned. None of them will ever be successful at having their losses restored.
What bothers me significantly is how Smith could flourish-he did for 24 years. Was his stellar batting record not of some concern to crown attorneys? Was his stellar capacity to indict and convict people accused of killing children not of concern to the police officers themselves, for fear that they had picked the wrong person to be charged? Was Smith's capacity to find criminal culpability with the named accused not of concern to judges?

Smith didn't work in a vacuum. What about the coroner? Wasn't the coroner's office concerned? During the course of, if not the first or the second or third of those 24 years, at least well into the 15- and 20-year range, wasn't the coroner's office a little concerned about how effective Smith was at providing evidence that supported the crown's case and didn't support the defence argument? What about his colleagues? What about other pathologists? What about other people in the medical profession? What about the Hospital for Sick Kids, who kept him in their employ?
Smith wasn't a solo operator, and although Smith has been appropriately condemned-I only wish he could spend a portion of the jail time his victims have-we haven't recognized the culpability of other players in the system. Smith was supported, nurtured, tolerated, reinforced, aided and abetted by any number of police officers, crown attorneys and judges; I have no hesitation in saying that. And bring on the e-mails, folks, because I have absolute confidence in that observation.
He was giving public testimony. He was appearing in front of judges who have heard case after case after case and who, one presumes, were highly experienced. What I find incredibly frightening about this is that it reveals that tunnel vision of the criminal justice system wherein the presumption of innocence is given but lip service. My fear is that Smith could survive 24 years of lying and cheating and misleading because people in the criminal justice system don't really believe in the presumption of innocence. In fact, the presumption is that if you have been charged, you must be guilty, and if not of the crime you're charged with, at least guilty of something: a very dangerous precedent.

Look at the Attorney General's tinkering with jury panels-"tinkering" is putting it mildly-and the Attorney General's office only stops doing it once it gets caught. Don't think for a minute that the rationale for background checks of potential jurors is so that the crown attorney can find the people who are the most neutral and unbiased. Bullfeathers; the crown attorney is looking for the people who are most likely to convict and wants to exclude those people who might be a little more tolerant and a little more inclined to the defence. If you believe anything otherwise, then you're from some other planet than this one.
While Goudge has addressed procedural means whereby we can incorporate oversight, he didn't address the culture in those Bay Street towers-the Ministry of the Attorney General, amongst others, is over there on that side road; is it Grosvenor where the coroner's office is?- the culture wherein these professionals support each other, cover up for each other, cultivate incompetence.

Mr. Dunlop was there; Mr. Dunlop has referred to some of the heartbreaking stories of families who lost a loved one: daughters, children, partners and parents. They told stories about coroners' offices that were oh, so high and mighty, that dismissed them with a little wave of the hand: "Go away, go away; you're bothering us." Is that a fair observation?

Mr. Garfield Dunlop: Yep.

Mr. Peter Kormos: Mr. Dunlop responds. Of course, they weren't speaking about all coroners. We only heard about the bad ones. Nobody came forward-because people aren't inclined to do that-with good stories about coroners or other officials who treated them with fairness, respect and dignity. We heard about coroners' offices that refused to listen to family members who had lost a loved one, who refused to embark on investigations and subsequent inquiries and who had an aloofness, an attitude of, "We know it all, and you're stupid." That's a dangerous phenomenon that Goudge, of course, didn't address.

While it wasn't Goudge's job to indict Smith, he, in a very careful and judicially toned comment, did as much. Goudge wrote: "... Smith was adamant that his failings were never intentional. I simply cannot accept such a sweeping attempt to escape moral responsibility." In other words, the inference that you draw from that comment is that Goudge said these were intentional and that Smith knew full well what he was doing in his zeal to convict people, in Smith's zeal to pander to his bosses, in Smith's zeal to be seen as a caped crusader, in Smith's zeal to be seen as a friend of the victim, and in Smith's zeal to be seen as a friend of the police and the prosecution.

Unless and until we move beyond this and address the culture in which Charles Smiths can be cultivated and can be nurtured, we are going to have more Smiths -notwithstanding all of the oversights that have been proposed by Goudge.";

The entire debate can be accessed by cutting and pasting:

http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2009-05-28&Parl=39&Sess=1&locale=en#P64_2504

Harold Levy...hlevy15@gmail.com;

UP-DATE: REFORM TO CORONER'S SYSTEM IN ONTARIO; WHAT'S DIFFERENT? WILL THEY PREVENT FUTURE CHARLES SMITH TRAVESTIES AND FLAWS IDENTIFIED BY GOUDGE?

The Ontario Government has provided an "explanatory note" which points the changes which are being made to the province's Coroner's Act as a result of the Charles Smith debacle and the recommendations of the Goudge Inquiry;

I am somewhat concerned that these amendments have been made without apparent scrutiny outside of the legislature - and that I have come across no public analysis as to whether the amendments go far enough to remedy the abuses in Ontario's Coroner's system revealed by the Goudge Inquiry;

I invite our readers to direct any comments about the amendments privately to me at hlevy15@gmail.com and may post some of them at a later date without identifying the author - unless the author would like to be identified;

As set out in the explanatory note:

New section 6 requires the establishment of the Ontario Forensic Pathology Service, which will facilitate the provision of pathologists' services under the Act.

Amendments respecting pathologists;

Under new section 7, the Lieutenant Governor in Council may appoint a Chief Forensic Pathologist and Deputy Chief Forensic Pathologists, all of whom must be pathologists certified in forensic pathology. The Chief Forensic Pathologist is responsible for the administration and operation of the Ontario Forensic Pathology Service and for the supervision and direction of pathologists who provide services under the Act.
The Chief Forensic Pathologist is required by new section 7.1 to maintain a register of pathologists who are available authorized to provide services under the Act.

Amendments respecting post mortem examinations:

Sections 28 and 29 of the Act are re-enacted to clarify the roles of coroners and pathologists with respect to post mortem examinations. A coroner is authorized to issue a warrant to a pathologist requiring the pathologist to perform a post mortem examination of a body. The warrant must be issued to a pathologist whose name is on the register maintained by the Chief Forensic Pathologist. The Chief Forensic Pathologist may assign another pathologist whose name is on the register to perform the post mortem examination instead of the pathologist to whom the coroner's warrant was issued.
The pathologist who conducts the post mortem examination may conduct, or direct another person to conduct, additional examinations and analyses as he or she considers appropriate. The pathologist is given the power to enter and inspect any place where the dead body is and examine the body and to enter and inspect any place from which the pathologist believes the body was removed.
The pathologist and any other person who conducted examinations or analyses are required to report their findings to the coroner who issued the warrant, the regional coroner and the Chief Forensic Pathologist. The Chief Forensic Pathologist must advise the Chief Coroner if, in his or her opinion, a second or further post mortem examination of the body should be performed and the Chief Coroner is then required to order another post mortem of the body.
The power to extract the pituitary gland for the purpose of treating growth hormone deficiency, currently set out in section 29 of the Act, is not re-enacted. Safer methods of obtaining growth hormones are now available.

Subsection 56 (1) of the Act is amended to provide for regulations governing the retention, storage and disposal of tissue samples, implanted devices and body fluids obtained from a post mortem examination of a body or other examinations and analyses.

Amendments respecting oversight and complaints:

The current section 8 of the Act is replaced with a provision dealing with oversight. Section 8 establishes the Death Investigation Oversight Council, whose function is to oversee and advise the Chief Coroner and the Chief Forensic Pathologist.

New section 8.1 lists the matters on which the Oversight Council is to provide advice: financial resource management, strategic planning, quality assurance, performance measures, accountability mechanisms, appointment and dismissal of senior personnel, the exercise of the power to refuse to review complaints, compliance with the Act and the regulations, and other prescribed matters. The Oversight Council is to report to the Minister on its activities, including its provision of advice. It is also required to advise and make recommendations to the Minister respecting the appointment and dismissal of the Chief Coroner and the Chief Forensic Pathologist.

New section 8.2 requires the establishment of a complaints committee composed of members of the Oversight Council.

New section 8.4 sets out the complaints process. Any person is entitled to make a complaint to the complaints committee about a coroner, a pathologist or another person who has powers or duties in relation to post mortem examinations. The committee will generally refer complaints about coroners to the Chief Coroner and complaints about pathologists to the Chief Forensic Pathologist. It will itself review complaints about the Chief Coroner and the Chief Forensic Pathologist. It will refer complaints about the other persons with powers or duties in relation to post mortem examinations to a person or organization that has power to deal with those complaints and that the committee considers appropriate. It may also refer a complaint about a coroner or pathologist to the College of Physicians and Surgeons of Ontario or to another person or organization, if it is of the opinion that the complaint is more appropriately dealt with by the College or other person or organization. A person who is not satisfied with the results of a review of a complaint by the Chief Coroner or Chief Forensic Pathologist may ask the committee to review the complaint. The committee will report on its activities to the Oversight Council.

Amendments respecting coroners' investigations:

Subsection 15 (1) of the Act is re-enacted to enlarge on the purpose and scope of a coroner's investigation. The new subsection makes clear that the coroner must make such investigation as, in the coroner's opinion, is necessary in the public interest not only to determine whether or not an inquest is necessary, but also to determine the answers to the same questions to be determined by an inquest under subsection 31 (1) (i.e., who was the deceased and how, when, where and by what means did he or she die) and to collect and analyze information about the death in order to prevent similar deaths.

Under new section 16.1, the Chief Coroner may appoint any person to exercise the investigative powers of a coroner. A person appointed under this section cannot determine whether or not to hold an inquest and cannot hold an inquest.
Clause 4 (1) (d) of the Act currently requires the Chief Coroner to bring the findings and recommendations of coroners' juries to the attention of appropriate persons, agencies and ministries of government. This is expanded to apply to the findings and recommendations of coroners' investigations as well.

Amendments respecting the determination to hold an inquest:

The obligation in clause 10 (1) (b) of the Act to notify police or a coroner if a person believes a deceased person died by unfair means is repealed.
Current subsection 10 (4) of the Act requires that an inquest be held where a person dies while detained by or in the actual custody of a peace officer or while an inmate on the premises of a correctional institution, lock-up or place or facility designated as a place of secure custody under section 24.1 of the Young Offenders Act (Canada). Subsection 10 (4) is divided into several subsections dealing with these situations. The new subsections 10 (4.3) and (4.5) provide that, in the case of a person who dies while committed to correctional facilities, an inquest is mandatory only if the coroner is of the opinion that the person may not have died of natural causes. New subsections are added to provide for a mandatory inquest if a person dies while being restrained and while detained in a psychiatric facility or in a hospital under the mental disorder provisions of the Criminal Code (Canada), or while committed or admitted to a secure treatment program under the Child and Family Services Act.

Under current sections 18 and 19 of the Act, a coroner is required to notify both the Chief Coroner and the Crown Attorney once he or she decides to hold an inquest or not. Sections 18 and 19 are re-enacted, and new section 18.1 is added, so that a coroner need only notify the Chief Coroner of the decision to hold or not hold an inquest. A coroner must notify the regional coroner if he or she thinks that the deceased person may not have died of natural causes, and the regional coroner must pass the notification on to the Crown Attorney. Where a coroner decides not to hold an inquest, he or she may make recommendations to the Chief Coroner with respect to the prevention of similar deaths, and the Chief Coroner may make the coroner's findings and recommendations public in the interests of public safety.

Amendments respecting inquests:

Section 22 of the Act, which authorizes the Minister to direct a coroner to hold an inquest, is repealed.

Section 23 of the Act, which authorizes the Minister to appoint a commissioner to hold an inquest, is repealed.

Subsection 33 (4) of the Act, which allows for an inquest to be held without a jury in a territorial district, is repealed.

Subsection 37 (1) of the Act currently requires a coroner's jury to view the body when directed by the coroner. This is amended to require the jury to view any place, not the body.

Subsection 50 (2) is expanded so that a coroner may limit cross-examination of a witness where the coroner is of the opinion that the questions being asked are irrelevant, unduly repetitious or abusive.

Amendments respecting administrative matters;

Section 4 of the Act is amended to permit the Chief Coroner to delegate any of his or her powers to a Deputy Chief Coroner.
As indicated above, section 8 of the Act is replaced with a provision dealing with oversight. This eliminates the provision that authorized a provincial judge to act as a coroner in a territorial district in the absence of a coroner.

Section 9 of the Act requires the local police force to assist a coroner and allows the Chief Coroner to request that the criminal investigation branch of the Ontario Provincial Police provide assistance to a coroner if he or she considers it appropriate. This is re-enacted.

Under new subsection 9 (2), the Chief Coroner may also request that another police force provide assistance to a coroner.

Subsection 15 (3) of the Act is amended to remove the Minister's power to give instructions to a coroner to issue a warrant to take possession of a body or interfere with a case after another coroner has issued a warrant.

A coroner's power in the English version of clause 16 (1) (a) of the Act is amended to state that he or she may "examine" a dead body, not merely "view" it.
Currently, the Act requires a coroner to issue a warrant to hold an inquest. The Bill dispenses with the requirement for a warrant; a coroner simply holds an inquest.

The Minister's powers in sections 24 and 27 of the Act are transferred to the Chief Coroner.

Section 39 of the Act is re-enacted to allow a summons to a juror or witness to be served by leaving a copy, in a sealed envelope addressed to the person summoned, at his or her place of residence with anyone who appears to be an adult member of the same household.

Subsection 45 (2) of the Act is amended to remove the Minister's power to require evidence recorded at an inquest to be transcribed.

New section 50.1 authorizes the Chief Coroner to make rules of procedure for inquests. The authority to make rules of procedure for inquests by regulation is repealed.

Section 53 of the Act, which limits the personal liability of coroners and persons acting under a coroner's authority, is expanded to apply to anyone exercising a power or performing a duty under the Act.

The Minister is given power to make regulations requiring and governing the disclosure, collection and use of information about coroners, pathologists and other members of the College of Physicians and Surgeons of Ontario among the Chief Coroner, the Chief Forensic Pathologist, the Oversight Council and the College.
The requirement that forms under the Act be prescribed by regulation is repealed, except for the bench warrant issued under subsection 40 (3), and replaced by the authority that the Minister may require and approve forms for the purposes of the Act.

Housekeeping amendments;

In clause 4 (1) (f), the redundant reference to "or by the regulations" is deleted, since it is captured by the phrase "under this or any other Act".

(I will publish the actual amendments in a future post);

Harold Levy...hlevy15@gmail.com;

KERAN HENDERSON CASE; PART 23; BRITISH LAW PROFESSOR CALLS FOR INCREASED TRANSPARENCY OF JURY VERDICTS; THE TIMES;

"IN THE CASE AGAINST THE TIMES, LORD JUSTICE PILL SAID THAT THE STRENGTH AND VALUE OF THE JURY DEPEND ON “THE OPEN AND FRANK EXPRESSION OF VIEWS BETWEEN 12 PEOPLE IN THE SECRECY OF THE JURY ROOM” AND THAT “CONFIDENCE TO EXPRESS VIEWS IN THAT WAY DEPENDS ON THE JUROR’S KNOWLEDGE THAT THE VIEWS WILL NOT BE REVEALED OUTSIDE THE JURY ROOM”. THE REASON FOR THAT PRINCIPLE IS THAT BY KEEPING SECRET WHAT ANY NAMED JUROR SAYS, OR HOW HE OR SHE VOTES, THE SYSTEM PREVENTS BLACKMAIL AND BRIBERY. BUT THAT PROTECTION REMAINED INVIOLATE AFTER THE TIMES ARTICLE BECAUSE ONLY A VOLUNTEER, MICHAEL SECKERSON, HAD BEEN IDENTIFIED. NO JUROR WHO WANTED TO REMAIN ANONYMOUS HAD BEEN EXPOSED."

PROFESSOR GARY SLAPPER: THE TIMES;

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Professor Gary Slapper set out his views on this issue - raised by the imposition of fines for contempt on the Times and the foreman of the jury in the Keran Henderson case - in a column in the Times which ran on May 23, 2009.

"Research on how real juries decide cases is illegal," Professor Slapper began.

"That is a bizarre and unsustainable law in the age of openness," he continued.

"Taxpayers fund more than 800,000 juror sitting days a year: why should we not be allowed to discover how juries operate?

The 21st-century society is an open one. We no longer accept that important parts of government should be operated in dark secrecy. We have a Freedom of Information Act and we expect openness in all parts of the justice system, unless there is some compelling reason, such as national defence.

There is no more important feature of our democracy than the jury, the forum in which it is decided which of us are convicted and punished with up to life imprisonment. In 1957, Sir Patrick, later Lord, Devlin observed that one of the first things a dictator taking over Britain would do was abolish the jury, because “no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen”.

With anything that important, there is a need to know how it works. In so far as Section 8 of the Contempt of Court 1981 prevents research on how juries work, it is an anachronistic law and should be reformed urgently.

In the case against The Times, Lord Justice Pill said that the strength and value of the jury depend on “the open and frank expression of views between 12 people in the secrecy of the jury room” and that “confidence to express views in that way depends on the juror’s knowledge that the views will not be revealed outside the jury room”.

The reason for that principle is that by keeping secret what any named juror says, or how he or she votes, the system prevents blackmail and bribery. But that protection remained inviolate after the Times article because only a volunteer, Michael Seckerson, had been identified. No juror who wanted to remain anonymous had been exposed.

There is now a compelling argument to change the law. The jury is probably a good institution but we do not really know how it works. Experiments with simulated juries have generated some curious results. In 2007, a study suggested that jurors are less likely to return guilty verdicts against attractive defendants. In an American experiment involving 715 people, a truthful speaker was judged to be lying by 74.3 per cent of the subjects and a lying witness was judged to be truthful by 73.7 per cent.

A Crown Court prosecution can be proven only if it is made “beyond a reasonable doubt”. So it is remarkable that if we ask ourselves whether we are sure, beyond a reasonable doubt, that the jury system itself works well, the answer is one worthy of Alice in Wonderland: we do not know and it is illegal to find out.

The author is director of the Open University law programme."

Harold Levy...hlevy15@gmail.com;

UP-DATE; REFORMS TO CORONER'S SYSTEM IN ONTARIO; MCGUINTY GOVERNMENT SAYS GOAL IS TO STRENGTHEN DEATH INVESTIGATIONS;

The Ontario government says it's reforms, announced yesterday today, are aimed at achieving "A Stronger, More Accountable Coroners System."

The press release runs under the heading, "McGuinty Government Takes Next Step In Coroners System Overhaul."

"Ontario will soon have a more responsive, more accountable death investigation system in with the passage today of the Coroners Amendment Act, 2009," the release begins;

"Passed today by the Ontario legislature, the Coroners Amendment Act, 2009, addresses the recommended legislative amendments in the report of the Honourable Justice Stephen Goudge's Inquiry into Pediatric Forensic Pathology in Ontario," it continues;

"When the new law comes into effect following royal assent, it will establish a framework to strengthen the death investigation system in Ontario. Provisions of the new legislation include:

0: The establishment of an oversight council for Ontario's death investigation system;

0: An improved complaints system under the oversight council;

0: The establishment of an Ontario Forensic Pathology Service;

0: A registry of pathologists authorized to conduct coroner's autopsies in Ontario
Improved death investigation services to northern and First Nations communities."

The release notes that Ontario's coroners investigate approximately 20,000 deaths every year, that approximately 7,000 of those investigations require a post-mortem examination by a pathologist, and that the Coroners Act has not been significantly updated since the 1970s.

harold Levy...hlevy15@gmail.com;

ONTARIO REFORMS CORONER'S ACT TO PREVENT MISCARRIAGES OF JUSTICE SUCH AS THOSE CAUSED BY CHARLES SMITH; TORONTO STAR REPORTS;

"SMITH'S ERRORS WENT UNCHECKED FOR YEARS BECAUSE OF A LACK OF OVERSIGHT, MAINLY FROM THE FORMER CHIEF CORONER AND HIS DEPUTY. THE NEW COUNCIL WILL OVERSEE THE WORK OF THE CHIEF CORONER AND CHIEF FORENSIC PATHOLOGIST AND HOLD THEM TO ACCOUNT FOR THE QUALITY OF INVESTIGATIONS."

HEALTH REPORTER THERESA BOYLE: TORONTO STAR;

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"The provincial government has passed sweeping amendments to the Coroners Act aimed at preventing miscarriages of justice, such as those caused in large measure by mistakes made by former pathologist Dr. Charles Smith," Health Reporter Theresa Boyle reports in today's Star.

""If we don't learn from past history, we are bound to repeat it," Community Safety Minister Rick Bartolucci said yesterday," Boyle's story continues;

"The amendments will deliver on many of the recommendations made last year by Justice Stephen Goudge, who oversaw an inquiry into pediatric forensic pathology, sparked by errors Smith made in 20 child-death investigations. A major feature is the establishment of an oversight council.

Smith's errors went unchecked for years because of a lack of oversight, mainly from the former chief coroner and his deputy. The new council will oversee the work of the chief coroner and chief forensic pathologist and hold them to account for the quality of investigations.

The act will also set up for the first time a registry of qualified forensic pathologists. There are about 200 forensic pathologists in Ontario but only about 12 of them are qualified to work on criminally suspicious coroners' cases.

The amended act also paves the way for a complaints committee to track complaints about coroners and pathologists."

Harold Levy...hlevy15@gmail.com;

KAREN HENDERSON CASE: PART 22; ANOTHER BRITISH LAWYER CHALLENGES BRITISH CONTEMPT LAW;

"NOR DOES SECTION 8 ALLOW FOR A PUBLIC INTEREST DEFENCE. WERE IT LEGALLY RELEVANT, THE TIMES WOULD HAVE HAD A STRONG BASIS FOR ARGUING THAT ANY DAMAGE TO THE ADMINISTRATION OF JUSTICE WAS OUTWEIGHED BY THE CONTRIBUTION MADE BY THE ARTICLE TO A DEBATE ON A MATTER OF PUBLIC CONCERN, THAT IS HOW JURIES ASSESS EXPERT MEDICAL EVIDENCE IN CASES OF ALLEGED CHILD CRUELTY."

LAWYER DAVID PINNICK: THE TIMES;

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Lawyer David Pinnick argues in the Times that the fines levied against the Times and the jury foreman in the Keran Henderson case prove the need for reform of an indefensible law.

I couldn't agree more - and I hope his arguments will also resonate in Canada and other countries where there are rigid restrictions against reporting the jury's deliberations;

"The decision of the Divisional Court (Lord Justice Pill and Mr Justice Sweeney) last Friday to fine Times Newspapers £15,000 for a report in this newspaper about a jury’s verdict in a manslaughter case strengthens the campaign for reform of an indefensible law of contempt of court," Pinnick's column begins;

"The article, published in December 2007, reported the concern of the foreman of a jury about how the decision was reached to convict a childminder for shaking a baby to death," the column continues;

"The court found that there was a breach of Section 8 of the Contempt of Court Act 1981 that makes it a criminal offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

The Divisional Court concluded that the article breached Section 8 for two reasons. First because it disclosed that the jury had split 10-2 immediately after they began their deliberations and that there was “no going back”. The court said that this was a breach of Section 8 because it revealed that the jury had formed their views early on, with a determination not to change their minds. The court so found even though it was, of course, announced at the end of the criminal trial that the jury had reached a 10-2 majority verdict.

The second basis for the finding of contempt was that the article reported the foreman’s concern that “the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense”, when there was a need carefully to consider expert evidence. According to the Divisional Court, this was to “reveal the approach of this jury to the evidence in this case”.

Section 8 was enacted after the New Statesman was acquitted by Lord Chief Justice Widgery in 1980 of contempt of court for publishing an interview with one of the witnesses in the sensational 1979 Old Bailey trial in which Jeremy Thorpe, the Liberal politician, and other defendants were acquitted of conspiracy to murder.

The terms of Section 8 are absurdly wide in their scope and application. The prosecution in the Times Newspaper case did not need to prove, nor could it have done, that the information published was damaging to the administration of justice. Such an absolute offence is rare. Even in the context of the Official Secrets Act 1989, most of the offences depend on proof that the disclosure is “damaging” to the public interest.

Nor does Section 8 allow for a public interest defence. Were it legally relevant, The Times would have had a strong basis for arguing that any damage to the administration of justice was outweighed by the contribution made by the article to a debate on a matter of public concern, that is how juries assess expert medical evidence in cases of alleged child cruelty.

The absolute nature of Section 8 of the Contempt of Court Act 1981 is indefensible, especially when Section 5 of the same statute says that if a person is charged with another category of contempt by publishing an article that creates a substantial risk of impeding or prejudicing court proceedings, it is a defence to show that the publication is part of a discussion in good faith of a matter of public interest and the risk of impediment or prejudice is merely incidental to that discussion.

The offence created by Section 8 is absolute in another important respect. When Section 8 was first debated in Parliament in 1981, it prohibited a publication only that identified a juror or the trial. Against the wishes of the Government, legal peers persuaded the House of Lords to introduce an amendment that removed that restriction. Section 8, as enacted, therefore prohibits any form of research into the deliberations of juries. Lord Mackay of Clashfern, then the Lord Advocate and later Lord Chancellor, argued in vain that “the jury system, great institution that it is, surely can stand up to properly conducted research”. Lord Chancellor Hailsham added that he would not vote for “a new criminal offence which is to my mind thoroughly bad because it is too draconian”.

Section 8, as applied by the Divisional Court in the Times Newspapers case, is an embarrassment to the legal system. Even though there is no conceivable damage to the administration of justice, and no naming of any individual juror, the court has punished the publication of information that contributes to a debate on an important matter of public interest. Any sensible jury would unanimously conclude that Section 8 is guilty as charged and is badly in need of amendment.

The author is a practising barrister at Blackstone Chambersin the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords;

Harold Levy...hlevy15@gmail.com;

BREAST CANCER TESTS "BOTCHED" IN 25 LABS RUN BY QUEBEC'S PATHOLOGIST'S ASSOCIATION; REMINDER OF NEED TO CAREFULLY EXAMINE REPORTS IN CRIMINAL CASES

"“TO PUT IT BLUNTLY THIS COULD BE AN EXPLOSIVE SITUATION,” DR. LOUIS GABOURY, PRESIDENT OF THE QUEBEC PATHOLOGIST ASSOCIATION TOLD RADIO-CANADA."

REPORTER RHEAL SEGUIN: GLOBE AND MAIL:
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The Globe and Mail has reported that breast cancer testing conducted in 25 laboratories in the province of Quebec has been "botched" putting women at risk;

This is yet another example of pathology gone wrong in Canadian laboratories;

It is yet another reminder that mistakes can be made in pathology laboratories even where there are the best intentions to produce accurate results;

It is also a reminder of the need for careful examination of forensic lab results being relied upon by police in criminal investigations and prosecutions - a reminder that they, too, can be terribly wrong.

"Quebec's health officials revealed Wednesday night that the province's breast cancer testing is seriously flawed, putting the treatment and lives of women at risk in a debacle similar to what took place in Newfoundland and Labrador," the story, dated May 27, 2009, begins;

"Hundreds of Quebec women may have received inadequate or ineffective treatment due to improper assessments done in 25 laboratories under the supervision of the province's pathologists association," the story continues;

"The study was obtained by Radio-Canada and shows that every laboratory had flawed test results.

“To put it bluntly this could be an explosive situation,” Dr. Louis Gaboury, president of the Quebec pathologist association told Radio-Canada.

He said that the study identified problems similar to what was found in Newfoundland and Labrador, where at least 386 women and men in that province received faulty results on their breast cancer tests.

“We are certainly a step away from the situation found in Newfoundland and Labrador a few years ago,” Dr. Gaboury said. “That means several hundred women may have received an erroneous result.”

As in Newfoundland and Labrador, Quebec patients received incorrect results in their hormone receptor tests, which are used to determine treatment options.

The Quebec pathologists' study showed that the tests aimed at identifying markers for hormone therapy were flawed in 15 per cent to 20 per cent of cases. There were up to 30 per cent errors when identifying HER2 protein markers for a treatment involving the popular drug Herceptin.

There are 6,000 women in Quebec diagnosed with breast cancer each year.

Botched cancer tests in Newfoundland and Labrador resulted in an inquiry headed by justice Margaret Cameron, who concluded in her report that the quality control at the St-John's laboratory that processed the breast cancer tests “was so little and so haphazard as to be non-existent.”

Quebec pathologists have demanded for years that the Quebec government undertake quality control tests of the province's laboratories, but to no avail. The pathologists decided to conduct the study themselves, which the Ministry of Health and Social Services is now scrambling to deal with.

“We were not informed until we saw the news report and nobody in the ministry is willing to confirm the conclusions of the report,” said ministry spokesperson Marie-Ève Bédard.

Health Minister Yves Bolduc was unavailable for comment, but was said to be meeting with his senior officials last night to determine the impact the report may have on public opinion should the study prove to be as accurate as Quebec pathologists claim it is.

Dr. Gaboury said the province should immediately undertake a full-scale study to determine the extent of the quality control in the provinces' laboratories. The study he conducted was small by comparison, Dr. Gaboury said.

In Newfoundland and Labrador, more than 100 breast cancer patients have died since their inaccurate tests, though there is no way of knowing if the errors hastened their demise."

Harold Levy...hlevy15@gmail.com;

KERAN HENDERSON CASE: PART 21; BRITISH LAWYER WANTS THE JUROR'S VOICE TO BE HEARD; MARK STEPHENS; THE TIMES ONLINE;

"JURORS HAVE EXPOSED YET ANOTHER FLAW IN THE SYSTEM RECENTLY, EXPRESSING CONCERN ABOUT THE SAFETY OF CRIMINAL CONVICTIONS IN A SHAKEN-BABY SYNDROME CASE. SOME DOCTORS HOLD THE BELIEF THAT IF THREE INDICIA TOWARDS THE SYNDROME EXIST WHEN A CHILD PRESENTS, THEN A “DEDUCTIVE DIAGNOSIS” MAY BE MADE SAFELY. MEDICAL OPINION IS DIVIDED STRONGLY. TWO JURORS CONCERNED ABOUT THIS CONFLICT AND CONSEQUENT RELIABILITY OF A CRIMINAL CONVICTION SPOKE OUT AFTER KERAN HENDERSON, A CHILDMINDER, WAS FOUND GUILTY BY 10-2 OF A CHILD IN HER CARE.

THERE IS NO OFFICIALLY PUBLICISED METHOD OF BRINGING INJUSTICE TO LIGHT. SO WHAT IS THE RESPONSIBLE JUROR, PRICKED BY CONSCIENCE, TO DO? IN THE CASES ABOVE, JURORS SOUGHT OUT RESPONSIBLE MEDIA AND GAVE INTERVIEWS AIRING THEIR CONCERNS IN VERY MEASURED TONES. NOT SUFFICIENTLY MEASURED FOR THE ATTORNEY-GENERAL, IT TRANSPIRED, WHO INSTITUTED CRIMINAL PROCEEDINGS FOR CONTEMPT."

LAWYER MARK STEPHENS; THE TIMES ONLINE;

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"Lawyer Mark Stephen's perspective on the punishments for contempt of court imposed on The Times and the jury foreman of the Keran Henderson trial was published earlier today in the Times Online;

Stephen's column appeared under the brilliant heading: "Would you want to know if a Ouija board decided your case?"

"It seems trite law that the secrets of the jury room, however compelling, must never be revealed, the column began;

"The British have a penchant for locking away in the closet distasteful truths about much loved institutions — whether jury deliberations or Liberal politicians," it continued;

"After the acquittal of Jeremy Thorpe, the former leader of the Liberal Party, on a charge of conspiracy to murder in the Old Bailey in 1979, Parliament reacted swiftly to protect its own, passing the modern strict liability offence as an absolute bar against revelation of almost anything from inside the jury room.

Unsurprisingly, this step backwards into secrecy caused disquiet. With others, Lord Steyn, the law lord, was demonstrably concerned (in a case before the law lords in 2004) that evidence that could reveal a lack of impartiality in a jury’s deliberations would no longer become public. This meant that the law had no jurisdiction to examine possible miscarriages of justice emanating from the jury room.

He cited two examples. A juror reveals that during deliberations some of the jury who were affiliated with a neo-Nazi group had urged the conviction of the accused, a black immigrant. In the second example, a juror reveals that a majority of the jury refused to deliberate and that the guilty verdict was decided by spinning a coin. “Neither example is either fanciful or extreme: both were suggested to me by decided cases,” he said.

No one would seriously contest that such verdicts would be unsafe and procedurally perverse.

Many will also remember the notorious 1994 case when Stephen Young, an insurance broker, was convicted of murdering Harry and Nicola Fuller. It transpired that the jury at Hove Crown Court had used a Ouija board in deliberations.

Jurors have exposed yet another flaw in the system recently, expressing concern about the safety of criminal convictions in a shaken-baby syndrome case. Some doctors hold the belief that if three indicia towards the syndrome exist when a child presents, then a “deductive diagnosis” may be made safely. Medical opinion is divided strongly. Two jurors concerned about this conflict and consequent reliability of a criminal conviction spoke out after Keran Henderson, a childminder, was found guilty by 10-2 of a child in her care.

There is no officially publicised method of bringing injustice to light. So what is the responsible juror, pricked by conscience, to do? In the cases above, jurors sought out responsible media and gave interviews airing their concerns in very measured tones. Not sufficiently measured for the Attorney-General, it transpired, who instituted criminal proceedings for contempt.

To date, jurors have been interviewed in a number of cases, including that of Barry George, the alleged killer of Jill Dando. These interviews occurred because, until recently, it was believed that the legal matrix had been relaxed so as to permit general disquiet to be expressed by a responsible juror, who would nonetheless be under a continuing obligation to keep the detail of deliberations secret to ensure the proper and effective functioning of a jury. This loosened position was set out in guidance issued in 1982 by Sir Michael Havers, QC, when his was Attorney-General, and reinforced with the adoption into UK law of the European Convention on Human Rights.

A stake was driven through the heart of that guidance in the recent prosecution by the present Attorney-General. In a twist of irony, she instructed Sir Michael’s son, the eminent QC Philip Havers, to prosecute. It was with a certain lightness of touch that Mr Havers said of his father’s guidance: “However eminent the Attorney-General may have been, he may also have been incorrect.”

The decision to prosecute in a genuine case of conscience is surely a retrograde step and the conviction by the Divisional Court is more disquieting, if only for its failure to address the balance necessary between Article 10 (the jurors right to speak) and Article 6 (the right to a fair trial).

One hopes that the House of Lords will accept the petition in this case and give clear guidance as to how a juror may properly express concern at unsafe verdicts and practices, while safeguarding the real noesis: the necessary secrets of the jury room."

Mark Stephens is head of media law at Finers Stephens Innocent LLP;

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE PART ELEVEN; SELECTED SECTIONS; THE EFFECT OF THE PROPOSED FRESH EVIDENCE;

"DR. SMITH’S TESTIMONY WAS ESSENTIAL TO BOTH ALLEGATIONS. HIS CLAIM THAT THE SCALP BRUISING HAD TO HAVE RESULTED FROM AN ASSAULT WAS WRONG. WITHOUT HIS INTERPRETATION OF THE BRUISE UNDER THE SCALP AND THE ASSOCIATED BLEEDING, THE CROWN COULD NOT LINK THE INJURY EITHER TO THE APPLICANT OR TO THE DEATH OF KASANDRA. HIS FAILURE TO ACKNOWLEDGE THAT THE PATHOLOGY LEFT NATURAL CAUSES OPEN AS A CAUSE OF DEATH IS NOW CHALLENGED. THE CROWN’S CASE WOULD NOW STILL INCLUDE THE APPLICANT’S STATEMENTS BUT, IN THEM, SHE ONLY DESCRIBED MINOR PHYSICAL CONTACT WITH KASANDRA THAT COULD NOT HAVE RESULTED IN ANY HARM TO HER, MUCH LESS DEATH. THE NEW EVIDENCE PROVIDES SCIENTIFIC NATURAL CAUSE ALTERNATIVES FOR WHY KASANDRA DIED."

AFFIDAVIT OF LAWYER ALISON CRAIG; FILED IN ONTARIO COURT OF APPEAL;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:

Today's section; (Final section to be included in this series): The Effect of the Proposed Fresh Evidence:

"I am of the opinion that there is substantial merit in the proposed appeal. If an extension of time is granted, the appeal would be based on fresh evidence to be adduced under section 683(1)(d) of the Criminal Code. The focus of the fresh evidence would be the opinions of Dr. Whitwell and Dr. Pollanen, the explanation of the Applicant as to why she pled guilty at her trial in 1992, and further expert opinions that the Applicant will seek if she is granted an extension of time.

The Crown’s case at trial depended heavily on the testimony of Dr. Smith. To succeed, the prosecution had to prove two main allegations:

● that the Applicant had committed an act of assault against Kasandra on April 9th, 1991; and

● that this act had caused the brain injury – and the fatal swelling – which led to Kasandra’s death.

Dr. Smith’s testimony was essential to both allegations. His claim that the scalp bruising had to have resulted from an assault was wrong. Without his interpretation of the bruise under the scalp and the associated bleeding, the Crown could not link the injury either to the Applicant or to the death of Kasandra. His failure to acknowledge that the pathology left natural causes open as a cause of death is now challenged. The Crown’s case would now still include the Applicant’s statements but, in them, she only described minor physical contact with Kasandra that could not have resulted in any harm to her, much less death. The new evidence provides scientific natural cause alternatives for why Kasandra died.

Dr. Smith’s testimony decisively linked the injury under Kasandra’s scalp to the Applicant’s description of a sweeping motion toward her with the back of her hand. The linkage was the “overlay” of the Applicant’s wristwatch on the configuration of the bruise under her scalp. In this way, the injury itself was able to identify the person who had inflicted it. The opinions of Dr. Whitwell and Dr. Pollanen that this inference had no scientific foundation and was “misleading” and “pseudo-scientific” undermine the Crown’s assertion that the Applicant caused the bruise under Kasandra’s scalp. As well, Dr. Smith’s testimony that a household accident could not have caused such an injury, and its location was incompatible with a fall, is discredited by Dr. Whitwell.

The Applicant’s statements to the police and others did not constitute an admission by her that she used force on Kasandra that amounted to an unlawful assault. She described a non-violent correcting motion on a recalcitrant child, at a time when she had to assist her infant daughter. Her action did not cause Kasandra to fall or cry. If it was a push, as she has so often described it, it was no more than legitimate and lawful form of parental correction. Even a “hit”, depending on its force, could fall into this category. But the testimony of Dr. Smith put an entirely different face on what she had done. Dr. Smith translated her action into a blow of such magnitude that it left the imprint of her wristwatch under her scalp, and led to her death. The fresh evidence breaks the link between the Appellant and the bruising.

It is now known that Kasandra had a previous brain injury, that was detailed by physicians at the Hospital for Sick Children in the last hours of her life; it was detectable (though missed at the time) in x-rays taken at Peel Memorial Hospital during Kasandra’s admission in February of 1991; and its remnants were visible at autopsy. In February, Kasandra developed an accumulation of disturbing symptoms, potentially indicative of brain damage. They included repeated vomiting; lethargy and sleepiness; weight loss; and developmental regression. These symptoms were never cured, nor their cause diagnosed. But for a short abatement, they were continuous from February until her death in April. This history was removed by Dr. Smith as being related to her death; now the evidence suggests a possible correlation. This accords with commonsense; her symptoms, that carried on for a month of hospitalization, suggest an underlying cause of disease for her death.

The “status epilepticus” suffered by Kasandra diagnosed at the time of Kasandra’s death ,and noted by Dr. Whitwell and Dr. Pollanen, refers to a continuous series of seizures. This could have caused the fatal edema. The epilepsy may have been a natural disease process or consequent on trauma. But Dr. Smith’s opinions only allowed for it being a symptom, or consequence, of the significant blow that put her into a coma.

The Applicant’s affidavit explains how she came to enter a plea of guilty at her trial. The main factor was Dr. Smith’s opinions which she and her lawyer viewed as beyond challenge, coupled with her own emotional vulnerability resultant from the loss of custody of her four children with the prospect of possible permanent separation if convicted and sentenced following a contested trial. It is my opinion that there is an appreciable likelihood that this Court will accept the Applicant’s explanation on these points and conclude that the guilty plea can be set aside, and her conviction quashed.

In these circumstances, I believe it would be in the interests of justice to allow the Applicant to appeal her conviction, which was based on what is now known and acknowledged to be flawed pathology."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART TEN; SELECTED SECTIONS; DR. SMITH'S CREDIBILITY TODAY;

Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections;

Today's section: Dr. Smith’s Credibility Today:

"There was a large amount of evidence led at the Goudge Inquiry that Dr. Smith was held in the highest regard in both medical and legal and judicial circles in the 1980s and 1990s, and was considered one of the world’s premier experts in the field of pediatric forensic pathology. The vast majority of defence lawyers viewed his evidence as unassailable. At the Inquiry, evidence was given that described the reaction of defence counsel and their client in terms similar to those expressed in by Tom Wiley, the Applicant’s counsel at her trial. The absolute confidence placed by so many in Dr. Smith’s work was misplaced. Commissioner Goudge referred to Kasandra’s case in his Report:

A second area of concern is that, on occasion, Dr. Smith expressed early informal opinions to the police in far too categorical terms. In Kasandra’s case, Dr. Smith performed the post-mortem examination and discovered a “donut-shaped” hemorrhage on Kasandra’s scalp. After observing the shape of the injury, Dr. Smith told the police to search Kasandra’s home for rounded items, such as a knob on a cupboard or something with a distinctive geometric shape that could have either a flat surface or a ring-shaped feature. The police took a women’s wristwatch from Kasandra’s home to Dr. Smith, who found it to be a good match for the injury.

At the preliminary hearing in the case, Dr. Smith told the court that the configuration of the wristwatch was consistent with the configuration of the area of hemorrhage. It was therefore reasonable to conclude that the watch was responsible for the fatal blow to Kasandra’s head.

This method of interpretation was wrong. At the Inquiry, Dr. Whitwell and Dr. Pollanen testified that Dr. Smith’s overlay of the watch onto the scalp contusion was an incorrect and misleading approach to the interpretation of that wound. Although overlaying an object onto an injury might be useful in some circumstances – for example, where there is a patterned object and an external injury – it was inappropriate in this case because of the depth and location of the injury. The scalp contusion was not an external injury – it was in the deep tissues of the scalp, rather than the surface – and the presence of thick hair and scalp tissues altered the appearance of the injury, making such a technique useless. According to Dr. Pollanen, Dr. Smith’s interpretation was really “a pseudoscientific wound-weapon matching analysis”. In this case, all that could be said from the scalp injury was that there was an impact of some sort. To suggest that a particular object caused the injury was misleading. Dr. Smith’s suggestion to the police, made on superficial analysis, led to an improper, inaccurate, and misleading interpretation of the evidence. This suggestion should not have been given at all."

hlevy15@gmail.com;

UP-DATE: ANDREW MALLARD ACCEPTS $3.25 FROM WEST AUSTRALIAN GOVERNMENTL WILL PURSUE LAWSUIT AGAINST 17 DEFENDENTS INCLUDING 7 POLICE OFFICERS;

"I AM STILL APPALLED AND SHOCKED AT THE AVOIDING OF ANY ACCOUNTABILITY FROM THE GOVERNMENT'S PART AND ALSO FROM POLICE."

ANDREW MALLARD: THE AUSTRALIAN NEWS;

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The Australian News story ran earlier today under the heading "Andrew Mallard accepts $3.25m for wrongful jailing."

"ANDREW Mallard, who spent 12 years in jail for his wrongful conviction on a murder charge, has accepted a $3.25 million ex-gratia compensation payment from the West Australian Government," the Australian Associated Press story begins;

"He has lodged a Supreme Court writ against 17 defendants, including seven police officers and the Director of Public Prosecutions," the story continues.

"Mr Mallard had pleaded with the WA Government to double the payment after the "take it or leave it" offer was made earlier this month."

"The 48-year-old served 12 years of a 20-year sentence for the 1994 murder of Perth jeweller Pamela Lawrence, before his conviction was quashed by the High Court in 2005.
Mr Mallard had sought $7.25 million in compensation before the Government announced its $3.25 million payment, which it described as a "gift".

On May 7, three days after the offer was announced, an emotional Mr Mallard urged the Government to rethink the amount.

He said he did not want to reopen the wounds from the years he spent in jail by fighting for appropriate compensation in a court action.

Deputy Premier Kim Hames today confirmed that Mr Mallard had accepted the offer, and said refusing it "wouldn't have changed any future option that he had".

But Mr Mallard said that in accepting the payment, he had been told the "gift" would be deducted from any future award of damages in the WA Supreme Court.

"It is an inadequate figure but I also need to do this for vindication," Mr Mallard told The West Australian.

"I am still appalled and shocked at the avoiding of any accountability from the Government's part and also from police.

"I have no choice but to accept this money - it is either go down the gurgler or accept what little I have and fight on."

Dr Hames said the compensation had been provided "without any strings attached".

"We provided that as a gift and it was always left open for him to decide whether he would pursue legal action," Dr Hames said.

"If he does that it will be his choice.

"It was going to be in effect a cheque in the mail.

"So if you got a cheque in the mail for just over $3 million I'm sure you wouldn't say no, particularly when there weren't any conditions to (accepting) that amount of money."

Asked if he personally believed it was the right decision, Dr Hames replied: "I think he's made the right decision in not rejecting that money.

"I guess he could have always not cashed the cheque but that wouldn't have changed any future option that he had."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART NINE; SELECTED SECTIONS; THE GOUDGE INQUIRY AND DISCOVERIES ABOUT DR. SMITH;

"DR. WHITWELL NOTED THAT DR. SMITH’S ASSESSMENT OF KASANDRA’S INJURIES DID NOT REASONABLY MATCH THE PHOTOGRAPHS OR HISTOLOGY IN THE CASE, AND THAT HIS TESTIMONY FROM THE APPLICANT’S PRELIMINARY HEARING WAS NEITHER REASONABLE NOR BALANCED. SHE ALSO EMPHASIZED THAT THE “POSSIBILITY OF EPILEPSY WAS NOT FULLY EXPLORED”"

AFFIDAVIT OF LAWYER ALISON CRAIG: FILED IN ONTARIO COURT OF APPEAL;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:

Today: The Goudge Inquiry and Discoveries about Dr. Smith:

"In November, 2005, the Chief Coroner of Ontario announced that a review would be conducted by an international group of forensic pathologists of forty-five criminally suspicious pediatric autopsies in which Dr. Smith had either conducted the autopsy or provided a consulting opinion. The results of the review were announced in April, 2007, and revealed a consensus that Dr. Smith had made serious and fundamental errors in twenty of the files that had been reviewed, including the case of Kasandra Shepherd.

In early 2007, the Applicant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC) and advised of these developments. She was both relieved and excited at the opportunity to have her case revisited, and at the prospect of finally getting some answers about what had happened to Kasandra. After a personal meeting with Commissioner Goudge, she authorized counsel to assist her in re-examining her manslaughter conviction.

Since then, a number of documents have been retrieved from the Applicant’s trial counsel (including the entire Crown Brief), from the Respondent, from the Chief Coroner’s office and through the Goudge Inquiry. A helpful overview of the case was prepared by Commission Counsel at the Goudge Inquiry in the form of an Overview Report. Most recently, in April, 2009, the Applicant obtained a transcript of the facts read in on her guilty plea on October 22, 1992.

The Opinion of Dr. Whitwell:

Dr. Helen Whitwell, a forensic pathologist for the Home Office in England, and the former head of the Department of Forensic Pathology at the University of Sheffield, was retained by the Office of the Chief Coroner to review Kasandra Shepherd’s case. She examined an extensive body of materials including Dr. Smith’s post-mortem report and supporting documentation, police reports, photographs, histological slides, x-rays, records from the Children’s Aid Society, and transcripts of Dr. Smith’s evidence at the Applicant’s preliminary hearing. In the short form Autopsy Report Review Form dated December 7, 2006, which she completed for the Office of the Chief Coroner, Dr. Whitwell noted that Dr. Smith’s assessment of Kasandra’s injuries did not reasonably match the photographs or histology in the case, and that his testimony from the Applicant’s preliminary hearing was neither reasonable nor balanced. She also emphasized that the “possibility of epilepsy was not fully explored”. The Review Form concluded:

Difficult case – there is evidence of impact injury to the back of the head with smaller areas elsewhere, some of which may be old. The overlay impression with the watch is complete nonsense for a sub-scalp bruise. Unreliable in the extreme. Discussion in testimony re: shaking – again in vogue during this era. [emphasis added].

For the Goudge Inquiry, Dr. Whitwell produced a more detailed Medico Legal Report outlining her opinions on Kasandra’s case. In it, she was critical of Dr. Smith’s use of overlays to give significance to the “donut-shaped” scalp contusion:
[Dr. Smith’s] report incorporates a diagram of what is described as a doughnut-shaped area of contusion. The written description is a super-elliptical-shaped area of hemorrhage with a pale central core. Overlays of the post-mortem photographs were done with a lady’s wristwatch over the internal scalp bruise.

This overlay is not appropriate as it is scientifically incorrect and misleading. The bruise may or may not represent an area of impact where the object is projecting. Such a scalp bruise may also [be] see n where there is an impact with a flat surface such as in a fall. In any event overlays should only be used in external injuries , for example where there is a question that a mark may be caused by a shoe. The thick hair and scalp tissues alter the appearance on the internal aspect to make such a technique meaningless.[emphasis added].

Dr. Whitwell also assessed Dr. Smith’s testimony from the Applicant’s preliminary hearing, and criticized several of his key conclusions:

This, from the material available, is the first time that Dr. Smith’s opinion in relation to the case is given… he goes on to describe in detail the sub scalp bruise identified in the post-mortem report. It appears when Dr. Smith found the bruise at post-mortem examination he indicated to the police to go and search for objects which in his view may have caused such a bruise. The police apparently did this and showed him a lady’s wristwatch. This is shown in the overlay photographs.

He then continues in his testament to indicate that the shape of the watch is consistent with the shape of the injury. This is incorrect. It is also misleading to use the term “consistent with”.
He then continued to give evidence that the subdural hemorrhage was located in the occipital part of the brain in the same region as the point of impact, and indicates that whatever caused the soft tissue hemorrhage caused a subdural hemorrhage. This is of concern as following impact subdural haematoma may occur at any area of the brain and the location cannot be taken to necessarily correlate with a point of impact.

Further testimony is given as to the degree of force necessary to produce such an injury and any type of incident which may cause such an injury. This includes testimony indicating that accidental falls around the home do not cause death. This is incorrect although other clinicians at that time may have given a similar opinion.
Dr. Smith also indicates in his testimony that the point of impact at the back of the head almost certainly precludes an accidental fall. This is incorrect as the back of the head is a common point of impact in a fall, whether accidental or not.[emphasis added].

Dr. Whitwell concluded her report with the following assessment of Dr. Smith’s work and his opinion on the case:

Dr. Smith showed a lack of forensic knowledge relating in particular to the bruise over the back of the head and its causation . He does not concede in testimony to the possibility of an accidental fall causing the injury. The overlay was totally inappropriate and misleading.

Also of concern is the linking of the location of the subdural bleeding with an impact site. Following impact subdural hemorrhage may occur over any area of the brain and the location cannot be taken to necessarily correlate with an impact site.

Dr. Smith did not consider the potential for underlying disease (epilepsy) to be the main neuropathological cause of death.
…

The diagram of a doughnut-shape bruise contained within the report was inappropriate and misleading.[emphasis added].

Testimony at the Goudge Inquiry:

a) Dr. Whitwell’s Testimony;

Commission Counsel asked Dr. Whitwell for her opinion as to the cause of death in Kasandra’s case. She responded:
A. Well, again, that’s – that’s difficult. I would summarize the findings as evidence of recent impact to the head. I would indicate that there’s evidence of old brain damage of brain injury, brain hemorrhages and then discuss the issue of the – the epilepsy. And possibly – from the pathology, that’s – that’s as far as you can take it.
Q. If you were asked to opine in a post-mortem report as to the cause of death in this case, what would you say?

A. Well, again, that’s – that is difficult. In fairness, it could relate to an acute head injury. It could relate to status epilepticus. There are two options, you can either give an unascertained or you can’t come to a conclusion, or you can go through a list of possibilities and then attempt to come to a conclusion.

Commissioner Goudge asked Dr. Whitwell some questions of his own:

Q. If you did that, how – just unpack it a little bit. How would you do it if you used that option as opposed to the unascertained option?
A. Well, what one would do would be to comment on all the features of the case.
Q. Right.
A. And then, for example, if it was the opinion that it was the acute head injury or there was sufficient evidence of an acute head injury to cause death then at the end say, this, in my opinion, is the most likely cause of death. And likewise with the – with the epilepsy.

Q. Okay. What is your view?

A. My view is that this is a difficult case and I think there are potentially two – there’s a number of options. That firstly, there’s evidence of old – old brain damage, that in itself can give rise to epilepsy. You’ve also got evidence of a recent head injury. Whether or not that has had a major contribution to death, I think, is unclear.

Q. So there are the two possible causes, in your view –

A. Yes.

Dr. Whitwell addressed Dr. Smith’s assertion that the bruise underlying Kasandra’s scalp could only have been caused by a blow from an object, rather than from a fall or similar mechanism:
Q. Can you tell whether this is an impact injury as a result of a child being struck by an object as opposed to the child’s head striking an object?
A. No, I can’t.

Later in her testimony, Dr. Whitwell was asked again about the issue. She reiterated:

I don’t think one can come to that conclusion. It – it’s an impact. It could have occurred in a number of ways.

In regards to Dr. Smith’s opinion that the similarly located subdural hemorrhage and bruise to the scalp were evidence of a direct application of force to that area, Dr. Whitwell explained:

I don’t think that you can link the location of the subdural hemorrhage with an impact point. It generally takes place over any area of the brain and so the location of the impact doesn’t necessarily have any bearing on it… the bleeding doesn’t correlate with the impact site.

Dr. Whitwell elaborated on her concern about Dr. Smith’s use of overlays and his conclusions about the source of the bruising on Kasandra’s scalp:
A. … in my opinion, it was inappropriate. The bruise noted was in the deep tissues of the scalp. Overlays of objects, such as footwear, can be useful in correlating where it’s – external injuries, where – where you have a patterned object.

But in this case, all one can say here is that there has been an impact of some sort and you cannot use an overlay in this situation because of the location of the bruise. There is hair, and then the scalp, and then the bruise is deep, so it’s an inappropriate method.
Q. Because the bruise is deep.

A. Because the bruise is deep. They – an overlay – if – if you see something externally, which is a patterned injury, for example a shoe print or something, then in those circumstances that would be appropriate because you’d have a direct – almost direct contact. But where you’ve got separation by the hair, the scalp tissues, it – its simply not appropriate.

Q. It does not tell you anything?

A. It doesn’t tell you – it doesn’t tell you anything. And in – in fact, to suggest an object has caused that deep bruise is misleading; a particular object… that is an incorrect and misleading statement. You just can’t make that deduction.[emphasis added].

In response to a question by Commission Counsel, Dr. Whitwell testified that she was not aware of any literature or studies which would support the use of overlays in similar circumstances. Dr. Pekka Sauko, one of the other four external reviewing pathologists, testified as a second panelist with Dr. Whitwell. He “fully agree[d]” with Dr. Whitwell’s opinions in this regard.

In Dr. Whitwell’s opinion, it could not be assumed that the brain damage which led to Kasandra’s death was necessarily a result of trauma. A question by Commission Counsel as to whether Kasandra suffered from any medical conditions that could have caused her death led to the following exchange:

A. My understanding from the – the history was that prior to admission, she appeared to have a number of fits, and this raises the question as to whether or not her condition on admission was related to fits as a primary pathology.
. . .

Q. Can the pathology alone in this case tell us whether or not this was a case that – where this – where the child died as a result of a – an inflicted head injury or died as a result of an epileptic fit?
A. No, the pathology of the epilepsy – brain damage – can’t tell you if it was primary or secondary.

Dr. Whitwell considered there was a potential that an underlying disease of epilepsy was the neuropathological cause of Kasandra’s death.

Dr. Whitwell’s overall view of the pathology in Kasandra’s case was captured in her view that in the United Kingdom, standing by itself, it would not likely have supported the laying of a charge. She said:
A. I mean, one could say well, you know, a number of scenarios, or two (2) scenarios are possible. It’s rather, then different from the issue of what happens in the Court scenario, because in – in England and Wales, would this actually have got to Court in the first place. Do you see what I mean?

Q. And the answer would be no because of an insufficient certainty about cause of death, is that what you imply?

A. Probably it wouldn’t.

. . .

Q, And for the that reason that I suggest; that it is an insufficient certainty from the pathology about the cause of death?

A. Correct.

. . .

Q. But you say, I take it, viewing it in today’s context, the better way to view the pathology is that there are two (2) possible causes, both of them possible; neither of them sufficiently probable to give you a diagnosis of cause of death… is that a fair summation of your professional view today?
A. Yes, it is.

Later, in her testimony, Dr. Whitwell agreed that labeling Kasandra’s death as a homicide would be “a most questionable judgment”. Dr. Whitwell, who had frequently been consulted in post-conviction cases in the United Kingdom by the Criminal Cases Review Commission (and the Crown Prosecution Service and defence counsel) believed it “highly likely” Kasandra’s case would have been referred by the Commission to the Court of Appeal for rehearing if its facts had come before them.

b) Dr. Pollanen’s Testimony:

Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, also reviewed the Applicant’s case. In a report prepared for the Inquiry, Dr. Pollanen summarized his concerns regarding Dr. Smith’s testimony and his own views about the cause of Kasandra’s death:

At the preliminary inquiry, Dr. Smith essentially testified that an impact from a lady’s wristwatch was the cause of the fatal head injury. This statement was based on a pseudoscientific wound-weapon matching analysis. This evidence was unreliable and outside the mainstream of forensic pathology.

It is unclear if Kasandra had a fatal head injury at all. Many of the findings that are recorded in the autopsy report are difficult to support upon review of the autopsy photographs. It is clear that there are scalp bruises, but unclear if these injuries are related to death.

There is evidence to suggest that Kasandra may have died from status epilepticus caused by a natural disease and that her death was not related to acute head injury.

A second opinion review of this case is required to determine if this death is unnatural or natural.[emphasis added].

In his testimony at the Inquiry, Dr. Pollanen described Dr. Smith’s use of the wristwatch-wound overlay as “by any interpretation… just not proper”.""

Harold Levy...hlevy15@gmail.com;

PROVINCE THAT HIRED DR. CHARLES SMITH AFTER HE LEFT ONTARIO IN DISGRACE NOW REVIEWING 70,000 EXAMS CONDUCTED BY A NOW SUSPENDED RADIOLOGIST;

"HOWEVER, IN AN INTERVIEW THURSDAY, DENNIS KENDEL, THE REGISTRAR OF THE COLLEGE OF PHYSICIANS AND SURGEONS, SAID THE COLLEGE ALSO HAD CONCERNS ABOUT TSATSI'S COMPETENCY 2½ YEARS AGO AND CONDUCTED A REVIEW.

"IN THE FIRST REVIEW, THERE WERE SOME CONCERNS ABOUT DR. TSATSI'S CAPACITY TO DETECT CERTAIN ABNORMALITIES IN X-RAYS," HE SAID.

HOWEVER, AT THE TIME, THE CONCERNS ABOUT HIS KNOWLEDGE AND SKILLS WERE NOT AS SERIOUS AS THE MORE RECENT ONES, HE SAID.

"THERE WASN'T EVIDENCE THAT WOULD SUGGEST THAT PEOPLE'S WELL-BEING WAS BEING PUT AT RISK. IN THE MOST RECENT REVIEW THERE WAS SUCH EVIDENCE," HE SAID."

CBC NEWS:

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The province of Saskatchewan is conducting an "unprecedented" review of 70,000 medical images analysed by Dr. Darius Tsatsi.

Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

"Questions of competency were raised 2½ years ago about the radiologist whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says," the Canadian Broadcasting Corporation (CBC) reported on May 21.

"On Wednesday, the Yorkton-based Sunrise Health Region announced it suspended Dr. Darius Tsatsi from privileges at the Yorkton Regional Health Centre on May 14 after serious problems were found in cases Tsatsi had been involved in," the story continued;

"The college said after other radiologists double-checked Tsatsi's work on 103 randomly chosen cases from last year, there was a "high incidence of disagreement."

"A worrisome proportion of those disagreements involve clinical situations in which a diagnostic error could have devastating adverse consequences for patients," the college said in a background document released to the media Wednesday.

Number to call:

The Sunrise Health Region is advising people who want to find out if Dr. Darius Tsatsi handled their diagnostic images to call their toll free number: 1-877-854-4424.
However, in an interview Thursday, Dennis Kendel, the registrar of the College of Physicians and Surgeons, said the college also had concerns about Tsatsi's competency 2½ years ago and conducted a review.

"In the first review, there were some concerns about Dr. Tsatsi's capacity to detect certain abnormalities in X-rays," he said.

However, at the time, the concerns about his knowledge and skills were not as serious as the more recent ones, he said.

"There wasn't evidence that would suggest that people's well-being was being put at risk. In the most recent review there was such evidence," he said.

Through his lawyer, Tsatsi asked back then to undergo "remedial education" at McMaster University in Hamilton.

He took the courses, but the college wasn't satisfied he had improved enough, so it did another review, leading to the suspension.

Tsatsi, who was trained in South Africa and has been working in Saskatchewan since 2004, still has his medical licence, but has agreed not to practice medicine until the competency hearing process is complete, Kendel said.

A review of 70,000 images is being conducted, most of them from Tsatsi's work at the Yorkton Regional Health Centre. There are also a smaller number of images to be checked at the Cypress Health Region in the southwest part of the province and at the Prince Albert Parkland Health Region.

Tsatsi's wife Liza issued a statement on her husband's behalf Thursday saying he will co-operate with the investigation.

"Look, he's not going to to run away from this," she said.

"He's a man of character and integrity. He will stay around and make sure the process finishes and co-operates because if he goes to South Africa he compromises the investigation and he's going make sure that no stone is left unturned."

In the written statement, Darius Tsatsi said his main concern is patient safety. He said he remains in Canada but will be taking a trip to South Africa to visit an ailing brother and attend to "private matters."

He said he and his family "wish to thank friends, patients and colleagues for their support in these trying and difficult times."

The statement said Tsatsi has been in medical practice for about 26 years, almost half of which were spent in diagnostic radiology.

"Some of the radiologists that he trained are employed all over the world including Canada," the statement said."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART EIGHT; SELECTED SECTIONS; THE CORONER'S INQUEST;

"THE JURY RETURNED WITH 73 RECOMMENDATIONS DIRECTED AT NUMEROUS AGENCIES FINDING THAT “CONCRETE CHANGES HAVE TO BE DONE TO OUR SOCIETY’S OUTLOOK ON CHILD ABUSE.”

FROM AFFIDAVIT OF LAWYER ALISON CRAIG FILED IN THE ONTARIO COURT OF APPEAL;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:

Today: The Coroner’s Inquest:

"On April 15, 1997, a Coroner’s Inquest was called into Kasandra’s death. The Inquest proceeded for 34 days and 56 witnesses, including the Applicant, testified. The Inquest Jury heard from physicians, nurses, Children’s Aid workers, child care workers,, social workers, police officers, the Office of the Official Guardian, officials from the Ministry of Community and Social Services and hospital administration officials. The Applicant has been unable to obtain a transcript of the proceedings.

A key evidentiary issue at the Inquest was whether the CT scan done on February 12, 1991 revealed a head injury. In a “Verdict Explanation”, written after the jury’s verdict, the presiding Coroner, Dr. Bonita Porter, wrote:

The CT scan was done Feb. 12th and was reported as:

“A plain scan was done. There is definite evidence of a very prominent sulci and the ventricles are also slightly dilated for this age. The appearances are consistent with that of cerebral atrophy. I do not see any evidence of a subdural hematoma present. No abnormality is seen.”

The police and a CAS worker attended the hospital and interviewed Kasandra, the natural father and stepmother and the family physician. Based on those interviews, the police closed their investigation. The CAS worker testified that she intended to stay involved.

. . . . .

On admission to the Hospital for Sick Children in April of 1991 the original CT scan of Feb. 12 was reviewed. The opinion that there was evidence of a possible head injury at that time was given. At the inquest, a pediatric radiologist was consulted. The report given at that time was:
“The CT scan from 12-02-91 demonstrates a slightly widened subarachnoid space anteriorly. No definite blood is seen in this area, however, a chronic subdural cannot be excluded. The ventricular system is at the upper limits of normal. There is a region of homogeneous attenuation thickening the right tentorium. This has the appearance of a subacute/chronic subdural hematoma.

No other intracranial abnormalities....”
The autopsy findings indicated a recent and a remote head injury. While the dating of the previous head injury could not be entirely specific the pathologist indicated through the expert witness that the findings were consistent with the report of the CT scan given by the pediatric neurologist at the inquest.

The expert witness, Dr. Marcellina Mian of the SCAN team of the Hospital for Sick Children, attended three days of testimony and testified at the end of the inquest having reviewed all of the documentation. Her opinion was that clinically, Kasandra presented with symptoms of a head injury in Feb. of 1991. Problems with information sharing and a clear understanding of roles were identified. Dr. Mian testified about risk factors in child abuse including domestic violence.

The Jury returned with 73 recommendations directed at numerous agencies finding that “concrete changes have to be done to our society’s outlook on child abuse.”"

Harold Levy...hlevy15@gmail.com;

UP-DATE; KERAN HENDERSON CASE: (20); TIMES TO APPEAL CONTEMPT VERDICT, GUARDIAN REPORTS; JURY FOREMAN APOLOGIZES TO COURT; RESERVES RIGHT TO APPEAL;

"AFTER THE HIGH COURT RULING, THE NEWS INTERNATIONAL TITLE SAID: "THE TIMES BELIEVES THAT THIS JUDGMENT IS A SERIOUS INFRINGEMENT OF ITS ARTICLE 10 RIGHT TO FREE SPEECH AND ITS DUTY TO ACT AS WATCHDOG IN A DEMOCRATIC SOCIETY, PARTICULARLY IN COMPLEX CASES WHERE THERE COULD BE A SERIOUS INJUSTICE." IF THE HIGH COURT'S JUDGMENT WERE NOT REVERSED BY THE LAW LORDS, IT WOULD HAVE "A VERY SERIOUS CHILLING EFFECT ON JURORS AND NEWSPAPERS TRYING TO BRING TO THE ATTENTION OF THE PUBLIC AREAS OF VERY CONSIDERABLE PUBLIC CONCERN, PARTICULARLY IN MANSLAUGHTER CASES INVOLVING THE DEATHS OF BABIES AND THE USE OF EXPERT WITNESSES"."

THE GUARDIAN:

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The Guardian story ran yesterday under the heading "The Times promises to appeal after £15,000 contempt of court fine" and a sub-heading, "The Times fined £15,000 and jury foreman £500 over article that discussed jury dissent in child manslaughter case."

"The Times has said that it will appeal after it was today fined £15,000 in the high court for contempt of court over two articles published last December about jury dissent in a child manslaughter case," the story begins;

"Michael Seckerson – who was the jury foreman and one of two dissenting jurors in the trial of Keran Henderson last autumn and provided the information to the Times – was fined £500 and also intends to appeal to the House of Lords," the story continues;

"The high court last week found the newspaper and Seckerson guilty of disclosing the "secrets of the jury room" in a contempt-of-court case brought by the attorney general, Baroness Scotland.

Section 8 of the Contempt of Court Act bans disclosure of "votes cast, statements made, opinions expressed or arguments advanced" by members of a jury in their deliberations.

The attorney general was awarded £27,426 costs, which will be picked up by the Times because Seckerson's defence was paid for by legal aid and the judges ruled that costs should not be enforced against him without the leave of the court.

Lawyers for the Times said the newspaper respected the court's judgment on the contempt issue, but an apology would ring "hollow" because it did not agree with the court and would attempt to appeal to the law lords.

They pointed out there had been no damage to the administration of justice, no individual juror was identified and no individual's opinions were disclosed. They said the articles were written in good faith, after taking legal advice, on a matter of public importance – the heavy reliance placed on expert medical evidence in "shaken baby" cases.

The defendants argued unsuccessfully that contempt proceedings could not be justified in this case in the light of article 10 of the European Convention on Human Rights, which guarantees everyone the right to freedom of expression, subject to exceptions such as the need to maintain the authority and impartiality of the judiciary.

Lord Justice Pill, who heard the case alongside Mr Justice Sweeney, said the court acknowledged those mitigating factors, but had to impose penalties "sufficient to mark the seriousness of breaches of section 8 and to deter others from following the example of this juror and this newspaper".

After the high court ruling, the News International title said: "The Times believes that this judgment is a serious infringement of its article 10 right to free speech and its duty to act as watchdog in a democratic society, particularly in complex cases where there could be a serious injustice."

If the high court's judgment were not reversed by the law lords, it would have "a very serious chilling effect on jurors and newspapers trying to bring to the attention of the public areas of very considerable public concern, particularly in manslaughter cases involving the deaths of babies and the use of expert witnesses".

The Times ran two articles on 19 December 2007 by the newspaper's legal editor, Frances Gibb, about the trial of Henderson, who was convicted of manslaughter of a child in her care, 11-month-old Maeve Sheppard. Henderson was jailed for three years but is to appeal against her conviction.

The articles, which ran five weeks after Henderson's trial in Reading crown court, reported that two jurors questioned the verdict and the role that complicated evidence from expert medical witnesses played in the trial.

Seckerson, 66, a retired lecturer at East Berkshire College, apologised to the court today but reserved the right to seek leave to appeal."

Harold Levy...hlevy15@gmail.com;

UP-DATE: DR. DAVID SOUTHALL; LOSES BID TO BE RESTORED TO MEDICAL REGISTER; BBC REPORTS;

"IN 2004, DR SOUTHALL WAS FOUND GUILTY OF SERIOUS PROFESSIONAL MISCONDUCT AND SUSPENDED FROM CHILD PROTECTION WORK OVER HIS ROLE IN THE CASE OF SALLY CLARK, WRONGLY JAILED OVER THE DEATH OF HER TWO SONS. DR SOUTHALL ACCUSED MRS CLARK'S HUSBAND STEVE OF MURDERING THE TWO BOYS ON THE BASIS OF A TELEVISION INTERVIEW. AT THE TIME HE WAS BANNED FROM CHILD PROTECTION WORK FOR THREE YEARS, A BAN WHICH RAN OUT LAST YEAR. DR SOUTHALL IS VIEWED AS AN EXPERT IN MUNCHAUSEN'S SYNDROME BY PROXY, A CONDITION WHICH MEANS PARENTS DELIBERATELY INDUCE OR FABRICATE ILLNESSES IN THEIR CHILDREN TO GET ATTENTION FOR THEMSELVES. HE PIONEERED THE USE OF COVERT VIDEO SURVEILLANCE IN THE LATE 1980S AND EARLY 1990S, WHICH LED TO A NUMBER OF PARENTS AND STEP PARENTS BEING PROSECUTED FOR ABUSE."

BBC NEWS:

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BBC News reports Dr. David Southall has lost his bid to end a ban imposed by the General Medical Council.

The story appears under the heading "Southall loses bid to end GMC ban" and the sub-heading "David Southall has had a controversial career."

"Paediatrician David Southall has lost his bid to have the decision to strike him off the medical register overturned by the High Court in London," the story, published May 22, begins;

"The General Medical Council (GMC) struck off Dr Southall in 2007 after he accused a Shropshire mother of drugging and murdering her 10-year-old son," the story continues.

"It had ruled he was guilty of serious professional misconduct.

It has previously rebuked him over the case of Sally Clark, who was wrongly jailed for the deaths of her two sons.

He was speculating on non-medical matters in an offensive manner entirely inconsistent with the status of an independent expert

Mr Justice Blake:

In 2007, the GMC panel said Dr Southall had a "deep-seated attitudinal problem".

It found that his actions had added to the distress of the mother - Mrs M - following the death of her son, who hanged himself in 1996.

Dr Southall made the claim in an interview with Mrs M about the safety of her surviving son.

He had been instructed by a county council to provide an independent expert report to the court.

'Lack of insight':

During his High Court case, lawyers for Dr Southall had argued that the GMC panel had failed to give "any or adequate weight" to inconsistencies in Mrs M's evidence, and that they did not understand what child protection work involved.

But in his judgement, Mr Justice Blake, ruled the decision to strike the paediatrician off was justified.

The judge added: "He was speculating on non-medical matters in an offensive manner entirely inconsistent with the status of an independent expert."

I am very disappointed by today's judgment:

And he said public confidence in child protection expertise would be undermined if "behaviour of the kind under consideration here, when combined with the lack of insight into, or acknowledgement of, its nature and extent, was considered to be compatible with continued registration as a medical practitioner".

In a statement Dr Southall said: "I am very disappointed by today's judgment.

"I have had tremendous support throughout this difficult period from my family, dear friends and legal team and I would like to thank them all.

I have no further comment to make at this stage."

A spokesman for the Royal College of Paediatrics and Child Health said Dr Southall was a "highly respected paediatrician and academic with an excellent record of published peer reviewed work".

And the organisation Professionals Against Child Abuse (PACA) said it was "saddened" by the judgement and warned it could have "further serious and negative effects " on the willingness of doctors to engage in child protection work.

Paul Philip, deputy chief executive of the GMC welcomed the ruling.

He said: "The vast majority of doctors in this country do an excellent job often in difficult circumstances. This includes paediatricians engaged in essential child protection work.

"Like other doctors, they need the confidence and support of the public.

"But where our standards have not been met, we must - and will - act to protect patients and the public interest."

Previous controversy

In 2004, Dr Southall was found guilty of serious professional misconduct and suspended from child protection work over his role in the case of Sally Clark, wrongly jailed over the death of her two sons.

Dr Southall accused Mrs Clark's husband Steve of murdering the two boys on the basis of a television interview.

At the time he was banned from child protection work for three years, a ban which ran out last year.

Dr Southall is viewed as an expert in Munchausen's syndrome by proxy, a condition which means parents deliberately induce or fabricate illnesses in their children to get attention for themselves.

He pioneered the use of covert video surveillance in the late 1980s and early 1990s, which led to a number of parents and step parents being prosecuted for abuse.

Dr Southall faced another GMC hearing into work that he carried out in the early 1990s, testing a new type of ventilator for premature babies. Accusations that he failed to gain proper consent for the work were dismissed.

Dr Southall worked as a consultant paediatrician at London's Royal Brompton Hospital from 1982 before moving to the same post at the North Staffordshire Hospital in Stoke-on-Trent in 1992."

Harold Levy...hlevy15@gmail.com;