A leading QC has attacked as ‘deeply flawed’ the recent decision of a medical disciplinary panel responsible for striking off a doctor who dared to question the existence of shaken baby syndrome.
Back in March Dr Waney Squier, a world-renowned neuropathologist, was banned from practicing after having been found to have lied and misled courts in a determination by the Medical Practitioners Tribunal, the disciplinary arm of the General Medical Council.
In a forensic analysis of the judgment, Michael Birnbaum QC, who gave evidence on behalf of the doctor, pulls few punches accusing the tribunal’s reasoning of being ‘largely formulaic and frequently illogical’ as well as being littered with ‘howlers’. ‘In my 43 years of practice at the Bar I have rarely read a judgment of an English Court or Tribunal so deeply flawed and unfair as this,’ he begins.
‘Given this bizarre combination of the apparently one-sided and the obviously inept, I cannot make up my mind whether the tribunal was actually biased in the sense of being actively prejudiced against Dr Squier or whether it was just not up to its task,’ he writes. ‘Whatever view one takes on its impartiality, the tribunal’s presentation of the evidence is so inadequate and its conclusion so poorly reasoned that it termination lacks all credibility.’
You can read article Michael Birnbaum QC’s article – A tissue of error, illogicality and apparent bias – on the Inside Justice website here. ‘For now Dr Squier’s voice has been silenced, but I sincerely hope that situation will change on appeal,’ comments Louise Shorter, who runs the miscarriage of justice investigative unit Inside Justice.
Shorter have evidence for the expert at her tribunal. ‘I am glad the Tribunal wrote in their judgment that they considered me to be a credible witness when I told them that I thought she was inherently honest and scrupulously fair,’ she says.
The former Rough Justice producer approached Dr Squier a couple of years ago to help on an Inside Justice case.
Shorter recalls: ‘Dr Squier spent an enormous amount of time reviewing the evidence in the case entirely without payment. Her motivation seemed to be one of over-riding fairness; that it would not be fair if we weren’t aware of research that could help our case so thought it her duty to help us understand all of the medical learning that could assist.’
‘Anyone touched by a miscarriage of justice will know that what an expert like Dr Squier does is offer a life-line of hope; they act as interpreter and guide in a world of ever-advancing medical knowledge,’ she adds.
‘What is most alarming though is the ripple effect this Judgment will have on the wider criminal justice system. Already we see it is being used as a weapon, in a criminal trial and an appeal in Canada and America, to attack the credibility of an expert who gave evidence on behalf of Dr Squier. The aim of the Courts, whichever jurisdiction, must surely be to let justice prevail but this Judgment, if allowed to stand, will only serve to silence experts who ought to be applauded for sharing their knowledge and understanding. And if that situation is allowed to remain, that is a serious threat to us all.’
Such concerns are echoed in a new letter from Dr Jennian Geddes, one of five medical experts to give evidence for Squier before the tribunal. She describes Dr Squier as ‘an outstanding academic neuropathologist, a woman of great integrity’.
In her letter to the tribunal chair judge David Pearl, Geddes describes its treatment of the other defence witnesses as ‘deplorable’ because all four were ‘distinguished experts in their respective fields who have been gratuitously defamed.
The panel comprised a retired RAF wing commander as chair, a retired senior policeman and a retired geriatric psychiatrist. In their view, Geddes was the one defence witness deemed credible. ‘I am especially concerned about the impact that the pronouncements by the tribunal will have upon their reputations and their ability to testify,’ Geddes writes. ‘If allowed to go unchallenged, they will inevitably imperil the experts’ credibility as witnesses in future cases.’
Immediately after the GMC’s ruling in March, supporters including the human rights lawyers Clive Stafford Smith and Michael Mansfield QC, wrote to the Guardian claiming Dr Squier was being scapegoated for being prepared to the challenge the existence of shaken baby syndrome. The mainstream orthodoxy is that a combination of symptoms (the so-called triad) – swelling of the brain, bleeding between the skull and brain, and bleeding in the retina – indicates trauma through shaking.
‘It is a sad day for science when a 21st-century inquisition denies one doctor the freedom to question ‘mainstream’ beliefs. It is a particularly sad day for the parent or carer who ends up on the wrong end of another doctor’s ‘diagnosis’ that an infant was shaken, when the child may have died from entirely different, natural causes.’
Clive Stafford Smith and Michael Mansfield QC
In each case Dr Squier, a consultant at the Radcliffe infirmary in Oxford and lecturer at Oxford University, gave evidence that the injuries were not consistent with shaking. For many years, the doctor had appeared as a prosecution witness against parents accused of killing their children. Her views on the contentious area of shaken baby syndrome changed in 2003 after having studied research by Dr Geddes. She then began to appear for the defence.
In the case of Lorraine Harris, she originally provided a report concluding that the baby had injuries consistent with shaking and subsequently changed her mind backing her appeal. You can read the solicitor Campbell Malone on the Lorraine Harris case here.
In 2010 the National Policing Improvement Agency (a quango since been disbanded) complained about Squier to the GMC. In October last year there was a hearing before the Medical Practitioners’ Tribunal which over 50 days heard highly complex evidence.
The tribunal’s five-page explanation of its decision was ‘scathing’ about Dr Squier’s conduct as an expert witness. ‘Your reports supported meretricious appeals, giving false hope to parents,’ it read. ‘Your evidence was given in very serious cases, based on a highly controversial subject and with great public interest. Your deliberately misleading and dishonest evidence in court had the potential to subvert the course of justice.’ She was accused of behaving irresponsibly by ‘cherry-picking’ research and evidence.
Cherry-picking – by the kilo
Michael Birnbaum calls the tribunal’s final determination ‘little more than a detailed recital of the main points of the prosecution case against Dr Squier, punctuated by only very occasional references to her own evidence, the arguments of her counsel and the huge array of character witnesses who supported her.’
The tribunal was apparently less than impressed by the barrister. He was described as ‘somewhat vague’ and they concluded that he ‘lacked some credibility’. The QC calls the implication that he was dishonest ‘outrageous’, not least because no one at the tribunal challenged a word of his evidence. However, he adds that ‘the insult’ is ‘a pinprick of no significance in the real-world’ and, he insists, not why he has spoken out.
‘The Tribunal appeared to be strongly biased against Dr Squier, not only because it omitted most of the defence case, but because of its outrageous treatment of the five expert witnesses who gave evidence on her behalf. It dismissed their evidence in a few sentences as outdated in one case and, in the other four, as lacking impartiality and/ or credibility. Thereafter it completely ignored their opinions save in a few cases where it thought that they supported the prosecution argument. So the Tribunal itself picked cherries: by the kilo.’
Michael Birnbaum QC
Author: Jon Robins
Jon is editor of the Justice Gap. He is a freelance journalist. Jon’s books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council’s journalism award (2015 and 2005) and is shortlisted for this year’s Criminal Justice Alliance’s journalism award