Recovered memory appeal halted

29 November, revised 4 December 2005

WHEN 44-YEAR-OLD Mary Bowman was found dead in July 1978, she had been drinking heavily the night before and there was enough alcohol and valium in her body to kill her. Everybody at the time seems to have accepted the medical findings - that she had died of 'alcohol and valium poisoning'. But twenty years later her daughter Diane, who had been five years old at the time of her mother's death, says she began to recover memories of what happened on the night in question. As these memories 'flooded' back she claimed both that her father had abused her previously and that she could remember him murdering her mother. She said that she had watched him punch her mother and hurl her against a fireplace. She had then seen him force-feed her sleeping pills and alcohol.

Although Diane Bowman's testimony was riven with inconsistencies and implausibilities, the Merseyside Police treated it with great seriousness and decided to commission a new pathologist's report. Twenty-two years after her death, Mary Bowman's body was exhumed. The examining pathologist, Dr Alison Armour, now pronounced that, on the basis of samples of bone taken from Mrs Bowman's neck during the original autopsy, and in spite of the negative findings at the time, there was 'no doubt' that Mrs Bowman had been strangled.

One of the many problems with this new expert view was that it actually contradicted the evidence which had prompted the exhumation: Diane Bowman had not made any claim that her father had strangled her mother. On the contrary she 'remembered' her mother still being alive whe the ambulance arrived. No less seriously, Dr Armour's findings appeared to be contradicted by the evidence of the pathologist who had conducted the post mortem at the time. He had specifically found that the characteristic external marks of strangulation were not present. If two bones inside her neck had indeed been broken before Mrs Bowman's death, as Dr Armour said she found, then such marks would almost certainly have been visible.

These inconsistencies, however, did not deter the police. Thomas Damien Bowman, a 60-year-old publican who had already been convicted for an unrelated sex offence involving an underage girl, was immediately arrested. After the prosecution were allowed to introduce into the proceedings prejudicial similar fact evidence of his alleged abuse of his daughter, which would once have been excluded from a murder trial, he was found guilty and sentenced to life imprisonment. This happened in July 2002. It was the first time that anyone in Britain had been convicted of murder on the basis of recovered memory evidence.

Given the findings of the pathologist who examined Mary Bowman's body in 1978, the outcome of the trial was remarkable. Indeed, it had been a prosecution expert, Dr William Lawler, president of the British Association in Forensic Medicine, who had warned that the original pathologist's 'unequivocal and uncompromising comment [about the absence of external marks of strangulation] constitutes an enormous hurdle to a successful prosecution.'

The stark contradiction between the findings of the original pathologist in 1978 and the new findings of Dr Armour was rendered even more problematic by a curious feature of the exhumed remains. For the neck organs on which Dr Armour's report was based had already been dissected from the body. Not only this but they were in a significantly better state of preservation than the other remains..

Soon after she had begun preparing Mr Bowman's case for appeal, Cathy McGalie, of Chris Saltrese Solicitors, made a striking discovery. She learned that, because of lax procedures which prevailed during the 1970s, it was surprisingly common for samples which had been removed from one cadaver during autopsy to be interred with a different body. She therefore requested that the samples of neck tissue on which the prosecution case partly rested should be tested. When the prosecution belatedly revealed in court earlier this week that DNA tests indicated that the tissue was not Mrs Bowman's, the appeal court hearing was suddenly adjourned.

In many respects, however, justice would not be served if the appeal is eventually won principally because of the doubtful or non-existent nature of the pathological evidence. Given what we know about the nature of recovered memories, the case is clearly one which should never have been put to a jury at all. Nor should the jury have been prejudiced by the introduction of highly tendentious allegations of sexual abuse which were also based on recovered memories. Nor should the police have been permitted to 'top up' their inadequate evidence in the manner that they did. For, at the last moment, they had visited the prison where the defendant had been held. Here they were able (as is usually the case) to find a hardened criminal who was happy to tell the jury that the defendant had confessed to him that he had committed the murder he had always denied.

What the case highlights is a state of affairs that both the government and a significant part of the judiciary have been endeavouring to avert their eyes from for far too long: namely that our courts long ago dismantled some of the vital safeguards which once served to protect innocent defendants against wrongful conviction.

This is not, as is sometimes thought, because an irresponsible government has been increasingly interefering with a once proudly independent judiciary. It is because the judiciary itself began to allow well-established rules of evidence, designed to safeguard the innocent, to be swept away by tides of prejudice at least as early as the 1940s. The government, which is largely composed of lawyers, has merely inherited the judicial confusion which resulted.

I try to relate how the original confusion came about in the five chapters of my recent book which are devoted to the story of the erosion and eventual destruction of the similar fact principle. I hope eventually to post these chapters on this site, since the tragic and disturbing story they tell is one which should be more widely known than it is..

In the meantime the conviction of Thomas Bowman in 2002 on the basis of a fantastic cocktail of dangerous evidence which should never have come anywhere near a jury, may serve as a reminder of just how deep is the trouble our courts are in.

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NOTE Earlier this year Alison Armour, the prosecution expert in the murder trial, gave evidence to the BMJ on behalf of Dr Alan Williams, who carried out post mortem examinations on both babies in the Sally Clark case and who was accused of misconduct for failing to disclose key medical evidence which pointed towards Sally Clark's innocence. In the BMJ hearing Dr Armour opposed the view of a number of experts by claiming that the evidence for a double homicide in the case was 'overwhelming'. Dr Williams was subsequently found guilty of serious professional misconduct and banned from Home Office pathology work for three years

To read Fiona Barton's report on the Bowman appeal, click here. For the BBC's news report of the sudden adjournment of the appeal, click here. For a report featuring the extraordinarily cautious terms in which leave to appeal was originally granted, click here.

29 November 2005

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Recovered memory appeal halted 29 November, revised 4 December 2005

Recovered memory appeal halted

29 November, revised 4 December 2005