We can afford justice!
Solicitor Bill Bache is best known for representing Angela Cannings, the mother wrongfully convicted of murdering three of her children. Here he speaks to Oliver Lewis about the case, expert evidence, legal aid cuts, and his long career which has taken some unusual turns. This article appears in the latest edition of The Advocate
Bill Bache is one of the few lawyers to have done both conveyancing and to have appeared in a Court Martial in the middle of a warzone. And that’s before you get to the family courts, war crimes cases, ID parades in Basra, the coroner’s court where he sat as a deputy coroner, and of course his practice as a leading lawyer in ‘cot death’ and ‘baby shaking’ cases in the criminal courts.
We meet in a bar on Theobolds Road a few hundred yards from his London office. Every inch the old school solicitor in smart linen jacket, striped shirt and pink tie on a sunny afternoon, he sits alongside his long-time colleague, Jacqui Cameron.
Bill served articles with a firm in Bedford Row before qualifying in 1967. He then worked in local government before joining a firm in Salisbury in 1973 where he first did conveyancing and civil law. Soon he was appearing in magistrates and family courts regularly, as well as in courts martial, Salisbury being near to an Army base.
“I was prevailed upon to go courts for which I hadn’t been particularly trained but they seemed to like what I did,” he says. “As time went on I found what I seemed to like was looking out for the individual against the power of the state in one way or another.”
A spell as deputy coroner for Swindon and Wiltshire sparked an interest in medical aspects of legal proceedings and later he became involved in the case that would become one of the most difficult of his career.
Angela Cannings case
When he was asked to represent Angela Cannings it seemed providential, he says. His experience in the criminal courts, the coroner’s court, and in dealing with care proceedings all came together, but even with all that useful experience under his belt, the difficulties in the Cannings case came as a surprise, not least, he says, the prejudice and difficulties faced by women brought into a dock to defend themselves against charges of killing their baby.
The Cannings case came not long after the similar case of Sally Clark, who like Angela Cannings had been brought up in Salisbury. That case had also featured evidence from the paediatrician Professor Sir Roy Meadow. A family solicitor friend of sally Clark warned Bache about what to expect, and told him to forget any illusions about the prosecution having to prove their case. What you effectively have to do, he was told, is go out and prove your client’s innocence. With three deceased children that was going to be difficult.
“I was almost naive at the time,” says Bache. “I had always proceeded on the basis that it was the prosecution’s job to prove its case and to do so beyond reasonable doubt, and if it couldn’t do that then in my book the accused should walk free. I kept being told there had been three cot-deaths and therefore it was likely to be murder. I never followed the logic at all.”
Eventually he got hold of the prosecution papers. “I have been dealing with criminal matters for a long time and in nearly all those cases your client can’t understand why they have been arrested, some of them protesting more sincerely than others about their innocence I should say, and you turn the pages and there nearly always comes a moment when you see something in the evidence when you say ‘Ah, that’s why they think you have committed an offence, I can see the police’s point, I can see why they are saying there should be a prosecution. In the Cannings case I turned the pages from beginning to end and I never found anything of the kind.”
Bache set about the case determined to find the right experts, but at first found it difficult to find anyone prepared to help.
“Most experts you wouldn’t see for dust. Finally we found someone prepared to be sceptical about the dogmatic claims that it had to be murder. Then we began seeing experts who said we also needed to go to this or that specialist, each sparked off the need to go to the next. We spoke to over twenty experts and ended up calling sixteen at the trial.”
Cot-deaths were then and still are to an extent a scientific enigma, he says. “There were all sorts of theories, and some were better than others. It was a very good grounding in how to deal with cases of this nature and a lesson in looking at the whole picture. The family had lived in a small village where there had been a cluster of cot-deaths and so we investigated whether there might there have been an environmental factor. There was also a nearby Government research establishment where experiments relating to biological and chemical warfare were taking place. We had to look at everything.”
Cannings was convicted by the jury, partly on the evidence of the later discredited Meadow, but Bache never doubted his client’s innocence.
“With Cannings, and indeed all the mothers and fathers I have had to deal with in this situation, there is something about them which makes you think there is absolutely no way they have done what they are accused of. Their innocence shines through in a way that simply doesn’t happen in most other cases. I am struck by their sheer bewilderment that anyone could even think they could have hurt their child.”
After Cannings was convicted, Bache knew they had to appeal. He was helped by a BBC journalist who researched the Cannings records in Ireland and discovered cot deaths in the family. Then the night before a pre-trial hearing and just a month before the appeal itself Bache received a phone call. Until that moment Angela Cannings didn’t know she had a half-sister.
“I had been working late hours on the appeal and for once I had more or less tidied my desk and I was in two minds whether to answer it. She told me that her own children had all had episodes or attacks where they had difficulty breathing. We were seeing her within the hour. We had to get new reports from a geneticist and others and be ready for the full hearing in a month. The Court of Appeal came to the conclusion that there may well have been some natural cases at work.”
The judgment was a landmark. “Although we were gutted when she was convicted, in hindsight we would not have had the benefit of the brilliant judgment by Lord Justice Judge, which seemed to me to redress the balance and bring things back to where they should have been in the first place, which was to remind everyone that the prosecution does need to prove its case. And if there is no scientific explanation you cannot simply go on from there to say there must have been criminal behaviour. If there is no scientific explanation then the answer is ‘We don’t know’. That should result in an acquittal.”
Since Cannings, Bache has dealt with a series of cases in which the interpretation of complicated medical data has been key. He secured an acquittal at a retrial for the couple accused of murdering their child in the salt poisoning trial.
“These sorts of cases seem to come in and out of fashion. The allegations against Clark and Cannings were to do with smothering. Then we had a spell of salt poisoning cases. Now there is an increasing number of shaken baby cases.” The consequences of these cases, he says, can be utterly devastating. “In the event a parent is found guilty of causing death or injury they will never be allowed to keep any future children. The children will be taken into care straight away. It’s been known for police to be actually in the delivery room waiting to take the new-born child. The consequences last forever, and if this is done as a result of an injustice that is a terrible price we pay as a society.”
So how does Bache assess the importance of the availability of expert evidence?
“The best way for defendants or parents to demonstrate they are not guilty is to have the evidence extensively examined by the right experts of weight and reputation. The prosecution and local authorities return to some experts time and again because they anticipate the opinion is going to fall down on the side of abuse. Where there is a grey area the most valuable experts are those who take a long and independent look at the data and give a carefully thought out and reasoned opinion. You should trust your experts, but make sure they are not dogmatic. I have heard experts talk about ‘mainstream opinion’, implying that it must be right. I won’t have truck with that. You only have to look at the time when people thought the earth was flat or the sun went round the earth, dearly held dogma to the point where anyone who said otherwise was executed.”
There are too many experts with an investment in having their pet theories proved, he says.
“There’s a danger they may be tempted to interpret the evidence in ways which support their dogma rather than giving an independent view of the evidence. Defendants can only break down that wall with the help of courageous and skilfully applied science with experts of the right calibre.”
Legal aid cuts
How does he see the current round of legal aid cuts affecting how justice is done?
“All solicitors know that getting funding for experts is a difficult process. You must get prior authority, which is often not approved because the rates are too high, yet these are world leaders in their fields. So someone perhaps facing a life sentence may be denied the best help they can get, facing a charge brought against them by the state, yet the state is not prepared to fund them. I notice the prosecution rarely have difficulty in instructing their own experts, yet defendants are squeezed and face great difficulties imposed by the state which makes it harder freely and properly to prepare their cases. And it is far worse now than when we did Cannings. It would be very difficult now to get the number of experts we did in the Cannings case.”
He would like to see changes to the way funding of legal aid is administered. “Prosecutions are in state hands, which is as it should be, the courts are run by the state, and the funding to allow people to defend themselves is also in state hands. I would like to see a reversion to the separation of powers, I would like to see funding placed in more independent hands as it used to be.”
What about people who say we can’t afford it?
“Yes we can! What we can’t afford is a shabby system of justice which doesn’t care and allows serious injustice to go on, because that is deeply corrosive to the welfare of the population as a whole and it is not the hallmark of what a great country should be! I can see the whole thing deteriorating. The situation over the remuneration of excellent, experienced and courageous advocates and solicitors is deplorable, it’s a disgrace and it does shame to this country that it has been brought to this.”
Equally at home in the criminal court and the family court, country and town, he’s been in a few battles on home soil, so how come he ended up in that warzone?
“We were doing an Army case and we had to go to Bosnia and we did the first Court Martial to take place in a theatre of war since the end of WW2. That was the first time I’d gone to court issued with helmet and flak jacket,” he says. “I didn’t think my advocacy was that bad actually!”
He didn’t miss conveyancing then? He laughs: “I’d given up conveyancing by then, far too dangerous!”