When Judith arrived at court, on the third day of the trial, she was surprised to see that the expert pathologist, Dr Leigh, was not with Andy or his team. She soon realised he was not in the building at all. As the minutes ticked by, Judith watched with mild amusement as the prosecution lawyers made hurried calls behind cupped hands, huddled together and waved their arms around, clearly concerned that the doctor would be late, but pretending to the outside world that they weren’t.
Eventually, they all shifted into the courtroom itself, and took their places, Andy drinking down two glasses of water in close succession and filling up for a third time. Judith avoided his eye. There was nothing she could say or do to assist and she would not gloat; a witness running late or failing to show was low down on her list of ‘things I love about my job’, especially when it was a key witness.
Then Dr Leigh arrived, one minute before his appointed slot. His relaxed demeanour suggested blissful unawareness of the furore caused by his ‘just in time’ approach. But Judith wondered if it was deliberate. That Dr Leigh wanted them to know that he had more important things to do with his day than come to court. After all, he wasn’t a forensic pathologist; one assigned to crime scenes, who might actively seek out expert witness work. He was one of the many hospital-based pathologists who carry out millions of vital biopsies and tests every year; autopsies were just one part. That also meant he was unlikely to have given evidence in court many times before.
‘Dr Leigh. You conducted the post-mortem on Mr Brett Ingram?’ Andy began, taking a deep breath, to calm himself.
‘I did, yes.’
‘Can you tell us what that showed you?’
‘Mr Ingram was aged forty-one when he died, a man who appeared to be in good health. His weight was around the mid-range for his height, but he had considerable muscle mass. In summary, he appeared to have been in good physical shape. There were no underlying health conditions either, from his medical records or from my examination.’
‘Then how did he die?’
‘The million-dollar question.’ Dr Leigh showed his teeth, in what Judith wasn’t entirely certain was a smile. ‘In my opinion, Mr Ingram suffered an allergic reaction termed anaphylaxis, after ingestion of an allergen, most likely shellfish, over the lunchtime period.’
‘What is anaphylaxis?’
‘It’s a reaction where different organs in the body react together, with the consequence that the body’s airways close and blood pressure drops. If it’s severe, it can cause death.’
Dr Leigh had surprised Judith so far with his lucid testimony. In her experience, it was difficult to explain medical issues to lay people in a succinct way, yet he appeared to be doing so, and with ease. As long as he continued, that would help when it came to her cross-examination.
‘Is the body attacking itself?’ Andy probed.
Dr Leigh gave that almost-smile again. ‘You would think that, wouldn’t you?’ he said. ‘In fact, the body’s own immune system is stimulated, and usually this would protect it, but in this case, the immune response does the opposite: it shuts the body down.’
‘What information told you that this was anaphylaxis?’
‘The most obvious feature, on examination of Mr Ingram’s body, was a raised level of an enzyme called tryptase in his bloodstream. I took a sample of Mr Ingram’s blood from the femoral vein in the leg, and it contained just under 150 micrograms per litre of tryptase. Anything above 44.3 micrograms leans towards anaphylaxis. Separately, there was swelling around the larynx – that’s in the throat – which is another potential pointer towards anaphylaxis.’
Judith underlined some words in her notebook. This was good. She would use all this herself.
‘Were those the only factors?’ Andy asked.
‘No. What I was told by the paramedics and the police featured in my diagnosis also, which is standard for a post-mortem. As I make clear at section three of my report, anaphylaxis often comes on suddenly; sufferers have difficulty breathing, they exhibit low blood pressure and sometimes a rash will appear on the body. Based on the eyewitness evidence, all of those features were present in Mr Ingram’s case. And then of course we had Miss Percival’s evidence of Mr Ingram’s shellfish allergy, which was passed on to me by the coroner’s office.’
‘Thank you, Dr Leigh. We’re going to take a moment now to play a short film, which was recorded by a cameraman employed by Mr Ingram to record the event, but which, instead, catalogued his death.’ So this was where Andy had decided to deploy the film. Fair enough, but Judith would have probably used it earlier. She braced herself for the fallout. ‘You’ve seen this film before, haven’t you?’ Andy asked.
‘Yes, and it’s consistent with my diagnosis.’
The judge warned the jury and the public of the potentially distressing nature of the footage, but no one made to leave. Then the lights dimmed and the film began to play on the overhead screens. It began just a few seconds before Brett started to speak, showed his dramatic collapse and ended abruptly, shortly after Diana ran forward to tend to her incapacitated boss. Judith watched the film closely, not because she needed to – she had memorised most of it – no, it was more to illustrate to the jury, if any of them happened to be looking in her direction, that it held no fears for her in defending Nick. Afterwards, Andy returned to questioning his witness.
‘Is there anything we see in the film specifically that helps you determine cause of death?’ Andy asked.
‘If you go in close-up on to Mr Ingram, you see him pulling at the clothing around his neck. Also, his microphone was switched on and he is clearly gasping or wheezing and…just the general suddenness of the collapse. All consistent with anaphylactic shock.’
‘And there was no other obvious cause of death?’
‘No.’
‘Are you certain about that?’
‘I’m a hundred per cent certain that there was no other obvious cause of death, yes.’
‘A hundred per cent certain,’ Andy repeated Dr Leigh’s words. Then he allowed the film to play a second time through to the end. No one spoke. Andy’s eyes travelled across the faces of every juror, checking they had all seen the footage and were paying close attention to Dr Leigh, before he moved on.
‘How many people die of food allergies every year?’ he asked.
‘About two million people in the UK live with a food allergy. Around 1,500 deaths a year are certified as due to asthma, which could be triggered by food allergy, so a fairly substantial number.’
‘Gosh, 1,500 is four people every day.’
‘That’s right. A not-insignificant number.’
‘I had no idea it was so high. So, in your view, is it important that people are aware of food allergies?’
‘It’s absolutely crucial. More deaths would be avoided if people were better educated and took the relevant precautions to protect others.’
Andy shook his head from side to side to illustrate how very sad each and every one of those deaths was, adding them, by association, to the death he placed on Nick’s tab, tapped twice on his lectern to reinforce his message further, then promptly sat down.
***
Judith reviewed a paragraph in her blue notebook one final time, stared out into the distance and then rose to her feet. Dr Leigh stood, hands folded in front of him, waiting for her to begin.
‘Dr Leigh, just going back to your figures, before we get into the detail of your report, are you aware of a recent study by Imperial College, London, which concluded that there are fewer than ten fatalities a year in the UK linked to food allergies alone?’
‘I am, and that is correct, I mean, correct, that is what they reported.’
‘You just told us 1,500 deaths, didn’t you?’
‘They’re different things. The bigger number is deaths where asthma was listed as the cause. I am saying that often doctors stop there but, in some cases – in many cases – the asthma itself only comes on because of the presence of an allergen. The smaller number – ten – that’s where people are pretty sure there was no other cause, but the number of allergen-related deaths is really somewhere between ten and 1,500.’
Judith nodded her understanding. It suited her, for now, for the jury to have confidence in Dr Leigh. ‘That’s all allergens though, not just food,’ she said, ‘so it includes pet hair or allergies to grass or pollen?’
‘That’s right.’
‘And, even at 1,500, those are still tiny numbers. At best, less than half a per cent of the UK’s deaths?’
‘I haven’t done the maths, but that sounds like the right ballpark.’
‘Is there anything else you can tell us about that study that might be relevant to this case?’
‘Hmm, yes, it focused on the figures for admissions to hospitals, which is where a lot of media interest arose. Allergy cases have generally gone up by around five per cent over the last twenty years. Mostly children and young adults are affected, and the worst culprit is the nut: peanut or other variety.’
‘Isn’t it also correct that the study referenced the number of EpiPens prescribed, which has increased by more than four times, and that may be one of the reasons why, despite more people having allergies, fewer people have been admitted to hospital and fewer people have died?’
Dr Leigh nodded. ‘That’s true. They’ve had a sizeable positive impact.’
‘Would you go so far as to say that EpiPens save people’s lives?’
‘Yes, they do.’
‘Thank you. Returning then to your report and your findings, it’s true, isn’t it, that no EpiPen was found among Mr Ingram’s clothes or belongings at the hall or in his car?’
‘That’s right.’
‘And there is no reference to Mr Ingram’s food allergy in his GP’s notes either, is there?’
‘No.’
‘Can you, with the benefit of your experience, put forward a sensible explanation for this?’
Dr Leigh opened his hands, as he weighed up the question. ‘I can deal with this, perhaps, more by omission,’ he said. ‘If Mr Ingram had suffered an allergic reaction previously and had gone to his GP, it would have been recorded in his notes. Equally, if he had undertaken any food allergy testing, even if this were done privately, it would be in his notes.’
Judith raised an eyebrow to illustrate to the jury how credible Dr Leigh’s account was. ‘You mean the fact it wasn’t in his notes,’ she continued, ‘suggests that he had not been tested for allergens and that he had not previously suffered an allergic reaction or…or, at least, consulted his GP in relation to a food allergy?’
‘Yes. Look, I can see that an otherwise healthy man – maybe on one occasion he’s eaten something – let’s say, mussels – he’s felt unwell. He’s self-diagnosed, you know, had a look on the internet – sickness, stomach cramps, maybe some blotchy skin – and decided he might be allergic. He decides, instead of going to the doctor – he’s busy, he doesn’t take it too seriously, he takes an over-the-counter anti-histamine, feels better – he’ll just avoid mussels in future, to be on the safe side. That, to me, is a plausible explanation.’
‘Thank you. I see that as a possibility too, although not helpful to us in our quest for what actually happened.’ Judith paused. Now it was time to begin to turn the screw. ‘Tryptase in post-mortem blood; the main indicator you mentioned to Mr Chambers, which led to your conclusion of anaphylaxis. I read a paper which came out only last year on the unreliability of tryptase. Do you know it?’
‘I’m not sure I know which paper you mean. It’s not my speciality, but I accept that it’s not a test routinely used in post-mortems.’
‘But you tested for it?’
Dr Leigh nodded. ‘I did. Once I received the message about the food allergy.’
Judith took a moment to look at her notes again. She had to make sure she addressed all the issues they were discussing, in the right order, for maximum effect.
‘Is it correct that tryptase levels in the body change?’ she asked, ‘including after death, and so it’s important to conduct the post-mortem quickly, if you are to have anything like an accurate picture of what was going on at the time of the death?’
‘Ideally you would test in the first twenty-four hours, but that’s hardly ever possible.’
‘When did you conduct your post-mortem?’
‘On the Friday. Mr Ingram had died on the Tuesday.’
‘Perhaps as much as seventy-two hours later, then. Not ideal, you’ve just said. Is it also correct that you would normally prefer to have a comparison rate? There might, for example, be a reason why a person has a high rate of tryptase in their blood on a day-to-day basis, without any allergic response. When you test post-death, you can’t know that.’
‘That’s true, but Mr Ingram’s levels were pretty high.’
‘In the study I’ve referenced, it says, “post-mortem tryptase levels must be treated with caution”. Why is that?’
Dr Leigh gave Andy a look which communicated that he had not been prepared for such a difficult ride. ‘Other factors can raise tryptase levels,’ he said, ‘but the majority of those factors were not present here.’
‘You choose your words carefully, doctor. Isn’t one of those factors, which can elevate tryptase, any form of CPR?’
‘Yes.’
‘And you know that Dr Edge performed CPR on Mr Ingram, as did the paramedics? The film we just watched stopped around that stage, but that was his evidence yesterday.’
‘I know that. But I took the sample from Mr Ingram’s leg, rather than directly from the heart, to compensate for that.’
Judith consulted her notes. Despite Dr Leigh’s apparent annoyance that he was being pressed so hard, most of her thrusts were being parried calmly and expertly, even though he was, quite candidly, accepting the limitations of his diagnosis. This wasn’t enough to save Nick. She had to convince the jury that Dr Leigh’s conclusions were totally wrong. She had to challenge him even more, but she must do this in a simple way everyone would understand.
‘When a person suffers an allergic reaction,’ Judith said, ‘is it right that a specific type of immunoglobulin E, an immune response, which is different for each and every allergen, is secreted by the body?’
‘Yes. Immunoglobulin E or “IgE” is a type of antibody found in mammals. If it is present in skin or blood, it can confirm a specific allergy.’
‘Then, there is a specific IgE antibody which would confirm that Mr Ingram was allergic to, say, crab?’
Dr Leigh nodded again. ‘It exists, but I didn’t test for it.’
‘Why not?’
‘It’s not routine. There’s general agreement that people with allergies may well already have raised IgE levels, or that you can have anaphylaxis without an IgE response.’
Judith turned to the jury and treated them to a broad smile, a smile which told them, even if they had not yet followed every twist and turn of her argument, that it had produced the desired result. One woman even smiled back.
‘So,’ Judith elongated the word, ‘even if this was an allergic reaction, your post-mortem provides no evidence of the specific antigen, that is, the specific substance which caused the reaction to occur?’
‘That’s right.’
‘It might have been…a bee sting, as much as any food ingested?’
‘In theory, but I checked the body carefully for signs of any bites or stings and I didn’t find any.’
Judith had to stop herself from grinning from ear to ear. Now this was good.
‘You checked Mr Ingram’s body for signs of bites or stings?’ she asked.
‘Yes.’
‘Why would you do that?’
‘To be sure…’
‘Because you had your doubts, I see that, and that’s OK to admit. Even with that raised tryptase level you described (albeit you’d done the post-mortem much later than the recommended twenty-four hours and Mr Ingram had received CPR) and the breathlessness, you, the pathologist conducting the post-mortem, with Mr Ingram’s body right there in front of you, you had no evidence that shellfish was the cause, did you?’
Dr Leigh swallowed and gave a shallow nod. Success Judith thought. But no time to rest on her laurels.
‘Let’s move on to where the shellfish was found in the food served at Tanners’ Hall,’ she said. ‘I’m not interested in the part of your report which mentions traces in the kitchen. The defence accepts that’s accurate but it proves nothing, because the kitchen was used for many consecutive events. I mean, where in the food served by Mr Demetriou?’
‘That’s easy. It was in the sandwiches.’
‘And how do you know that? It’s right, isn’t it, that the sandwiches had meat or vegetable fillings, but no obvious fish or shellfish?’
‘The label said it contained shellfish.’
Judith had to hand it to Dr Leigh. He’d been knocked down, but he was content to get back up and fight on. ‘Ah. I’m pleased you brought that up,’ she said. ‘Usher, can you pass to Dr Leigh exhibit two, which is a copy of a label from Costco taken from a platter of sandwiches. Dr Leigh, you can take your time to read through, but do you agree that there is no fish or shellfish listed in the ingredients?’
‘Yes, I do.’
‘Can you read out the last line, below the ingredients?’
‘Yes. It says “traces of nuts and shellfish. This product has been made in a factory which manufactures products containing nuts and shellfish”.’
‘So, that tells me – a lay person – that the sandwiches themselves contain no shellfish, but they might have been contaminated in some small way by shellfish products elsewhere in the factory.’
‘Yes.’
‘Thank you. Can you also tell me what date is on the label?’
‘Um, it says 13th June 2021.’
‘What does that say to you?’
Dr Leigh frowned, then he scratched his chin. ‘Um, this isn’t the label from the sandwiches Mr Ingram ate.’
‘Precisely. The prosecution has appended this label to your report, but you didn’t have it to hand when you conducted your post-mortem, did you?’
‘No. I didn’t.’
‘In fact, no one tested the actual sandwiches Mr Demetriou bought for traces of shellfish, did they?’
‘Not as far as I’m aware, no.’
Judith held her copy of the label tightly in her right hand and used it to point at Dr Leigh as she spoke. It was a tactic she had used before to good effect. Any kind of physical activity helped the jury focus, at a time they might be dropping off and scrunching up the document communicated how little respect she had for it. ‘It was only when asking you to prepare a more formal report, in preparation for this trial,’ she said, ‘that the CPS, that’s the Crown Prosecution Service, appreciated that this critical test, to check if the sandwiches really did contain shellfish, had never been carried out. Of course, the original sandwiches were long gone. So they bought some new replacement sandwiches and sent them for testing. Isn’t that right?’
For the first time, Dr Leigh frowned. ‘I’m not sure,’ he said.
‘I can take you to page 32 of your report…thank you, it’s on the screen just to your left – can you see that the test on the sandwiches is also dated 13th June 2021, the same date as on the label?’
‘That must be right then.’
Judge Linton held his hand up and coughed. ‘Mr Chambers, is Ms Burton correct? Were the actual sandwiches served to Mr Ingram never tested for shellfish?’
Andy rose with little enthusiasm. ‘My Lord, the test was conducted on the same trays of sandwiches, but purchased in June, and there were traces of shellfish, sufficient to cause anaphylaxis, which I will ask Dr Leigh to confirm, when I re-examine him.’
Judge Linton typed some notes into his laptop. Then he took his pen and wrote something heavily on his pad, before looking across at the pathologist.
‘Well, let’s do that now, shall we?’ he said, ‘while we’re on the topic. Dr Leigh, these sandwiches which were made in June 2021. Were the levels of shellfish in them sufficient to trigger an allergic reaction?’
‘They are small, My Lord, but yes, in my opinion, sufficient, for some people.’
‘But you accept, and Ms Burton has helpfully drawn the court’s attention to this, that this was a completely different batch of sandwiches, manufactured two months later?’
‘But the same line of sandwiches, same factory, same shop.’
Judge Linton continued to make notes and he pursed his lips to emphasise he was giving the matter considerable thought. ‘You see,’ he said, ‘there is a possibility that Costco changed its practices between April and June 2021 and introduced shellfish into its production line, which was simply not there in April. You do see that, don’t you Dr Leigh?’
Dr Leigh nodded. He could not do anything else. Even so, Judith’s heart sang. But Andy, if pressed, could bring evidence from Costco that their practices remained the same. Judge Linton waved at her to indicate his intervention was over. Judith had one more argument though, far simpler than immune responses and antibodies, or even than the small print on labels, to complete her cross-examination. It was the point Constance had, unwittingly, flagged for her last night. Assuming it went in Nick’s favour, it would be a good place to finish with the accomplished Dr Leigh.
‘Here’s one thing I find confusing, but I may have missed it,’ Judith tipped her head to one side and screwed up her face to reinforce her misunderstanding. ‘Where, in your report, does it say that Mr Ingram had consumed any shellfish?’
‘It doesn’t.’
‘Is that not something you could have determined from his stomach contents, perhaps?’
Now Dr Leigh’s bottom lip drooped and his eyes narrowed. ‘I didn’t check the contents of Mr Ingram’s stomach – not thoroughly,’ he said, and he sipped at the water next to him, spilling some down his shirt. I have him, Judith thought.
‘Why on earth not?’ she said. ‘Isn’t that the first thing to check, if a person has died from a suspected food allergy?’
‘Look. I didn’t know about the food allergy at first, when I was undertaking the post-mortem. I concluded, independently, that this was most likely anaphylaxis…’
‘How?’
‘From the swelling in the throat, the police reports and Miss Percival’s evidence, which confirmed my diagnosis, and there was also the rash mentioned by the paramedics, although that had faded by the time of the post-mortem. And then, later on, the tryptase levels confirmed things. But….’ he hesitated.
‘Do go on, Dr Leigh.’
Judith snuck a peek at the jury, but everyone was listening very carefully now. Dr Leigh was silent.
‘Am I right that the guidance given to pathologists about post-mortems in suspected food allergy cases recommends testing stomach contents?’
‘It doesn’t recommend testing, but it does say you should check.’
‘I don’t understand. What’s the difference?’
‘We don’t usually send stomach contents away for testing – some kind of analysis – not unless we think someone might have been drugged or ingested alcohol; those kind of things. Checking is…well, it just means having a look.’
‘All right. What did you see when you “checked” Mr Ingram’s stomach contents?’
‘I…’ Dr Leigh looked across at Andy and his head shrank down as his shoulders raised up. ‘I had collected the stomach contents, but my assistant was cleaning up and disposed of them before I could take a really good look.’
Judith’s mouth fell open and remained open for a few seconds before she continued. She wanted the jury to share her shock at Dr Leigh’s answer. ‘Your assistant disposed of them?’ she said.
‘Yes. But look, stomach contents is just one element. I would never, like I said, have sent them off for testing for traces of shellfish. I wouldn’t even know who would do that kind of test. At best, I might have been able to see, myself, if there was anything like bread in the stomach, but that all depends on how long ago it had been eaten, how much it had been chewed. It’s quite basic, I’m afraid.’
Now was the time then to demonstrate Dr Leigh’s limitations to the jury. ‘Dr Leigh. You’re not a forensic pathologist, are you?’ Judith began.
‘No. I’m not.’
‘You were asked to conduct this post-mortem, because it was thought to be death by natural causes. Is that right?’
‘Anaphylaxis counts as natural causes. I was perfectly well qualified to do so.’
‘But your day-to-day work, your bread and butter. Ah…excuse the poor choice of words, your general approach to this work doesn’t involve crime scene investigation, that kind of thing.’
‘That’s true. I don’t go to the scene and I don’t deal with obvious crimes.’
‘Is that why you don’t know where you would send stomach contents for testing? If your assistant hadn’t thrown them away?’
‘Yes. I suppose it is. But it wasn’t…’
‘Dr Leigh. You accept, then, that, without testing or even checking stomach contents, you have no evidence that Mr Ingram actually ate any shellfish, there is no evidence there was any shellfish in the sandwiches offered to Mr Ingram and, without the IgE test – as a reminder, that’s the test that identifies a specific allergen – and, again, assuming it was an allergy, which is also not certain, you have no idea which allergen brought on anaphylaxis – one hundred per cent no idea?’ Judith couldn’t resist the last comment, and she sensed, rather than heard, Andy grinding his teeth.
‘You’re misunderstanding what I do,’ Dr Leigh said. ‘The post-mortem examination is only part of the story. In this kind of death, there are many other factors which play a part.’
‘Yes, I know, you relied on Diana Percival and the police and the paramedics. You’ve said that. Well, we’ll be hearing from Miss Percival soon enough. How many post-mortems have you carried out, during your career as a pathologist?’
‘A lot. More than four thousand.’
‘That is a lot of post-mortems. In how many of those did you suspect a food allergy was to blame?’
‘I concluded that death had been caused by anaphylaxis in three cases.’
‘In addition to this one?’
‘Including this one.’
‘It would be good, from a CV perspective, for you to have more experience of deaths caused by food allergy, in a world where allergies are increasing.’
‘I don’t know what you mean,’ Dr Leigh said, leaning out over the witness box and raising his voice for the first time. ‘I report on what I see. I don’t tailor results to suit my CV and I don’t tout for work. Believe me. I don’t need to.’
‘Of course not. I apologise if that was how my question was interpreted. Thank you, Dr Leigh. You’ve been most helpful.’
Dr Leigh left the court without looking at Judith or Andy, and Judith turned her head through ninety degrees to feel the heat of Constance’s gaze of admiration.