In reality, however, you do not have to posit a conspiracy to explain when things go wrong with the legal system.
In particular, what happens in the justice system is that the safeguards and checks which exist to prevent or minimise miscarriages of justice sometimes do not work properly.
Just as a conspiracy can perhaps explain a car accident, the explanation is more likely to be brakes failure, or driver error, or so on. One or two things go wrong, and then the whole thing crashes.
As some Medieval chap put it, explanatory factors should not be multiplied beyond necessary.
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Indeed, a number of not directly connected people acting in concert to achieve a common goal is what is required for the justice system to work consistently properly.
And we all know unlikely that is.
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A conspiracy of errors?
Perhaps.
Take Twitterjoketrial – which for anyone else reading this comment is a case Matt and I worked on together, back in the day.
The Airport and the local police both rated the ‘threat’ as non-credible, but because if was ‘terrorism’ the local CPS were to make a decision. And instead of the CPS taking no further action, they strained the law to come up a way of prosecuting the case, when it was obvious a bomb hoax charge would not work. And from that one error the rest of the case flowed. The magistrates court then made a further error in getting the law wrong. And it took to the High Court for the systems failures to be corrected.
I think conspiracy of errors fits TJT very well, because the longer it went on, the decision makers seemed to take it more seriously than any reasonable person ought to have done. They were unduly influenced by the previous failings until the Lord Chief Justice put a stop to it.
You may well have studied Justice Peter Mahon’s Commission of Inquiry into the 1979 crash of Air New Zealand Flight 901 into Mount Erebus and the subsequent legal proceedings, which reached the Privy Council. Mahon claimed that Air New Zealand executives had engaged in a conspiracy to whitewash the inquiry, covering up evidence and lying to investigators. He concluded in his infamous line that they had told “an orchestrated litany of lies.”
No I have not. But generally speaking – when conspiracies do exist, they often exist to cover up the cock-ups.
One of the most commonly misunderstood ( and missapplied) phrases is ‘begging the question’. This is incorrectly understood as ‘raising the question’.
But it doesn’t mean that. It applies to an argument or form of reasoning where the initial premis is taken as axiomatic. It seems to me that what is attributed to conspiracy is simply a form of question begging. Reasoning, often erudite, is simply added to the original assumption and, in the case of trials, injustice is perpetuated.
Distinguished professionals (doctor accusers) go to the police and present their case against Lucy Letby. The police neither have the nous nor the will to be open minded, they are driven (it is their reason for being) to find crime. Immediately their mindset is that Lucy Letby is a murderer, they set out to build a convincing case against her. Crown Prosecution Services are – like the police – motivated, not by a sense of justice, but by successful prosecutions. Our courts are there to deliver the coup de gras, all component parts of our criminal justice system are weighted heavily against justice. And weighted heavily for prosecution. Things do not have to go wrong for miscarriages of justice to occur.
It seems to me that there is often considerable criticism of conviction rates, suggesting that there is pressure to convict more rather than to improve accuracy
If the courts go around slapping people in the face with a slice of bread and dripping, my respect for the majesty of the law will suffer a fatal blow.
I very much enjoy your writing. I think the notion that the justice system is designed to be fair is an assumption at best hard to justify. I wonder that is because that the system of checks and balance are really not operating in ‘real time’, the incentives are not there for all parties and so on from a systems perspective [ which is a disciplines that is hard to master ].
There are many examples to cite, though the most basic principle in that in criminal trials, the crown has unlimited resources and the defendant has limited resources, the limits of which are defined by the crown.
I am not a lawyer, I am highlighting basic principles that may not support that justice system is designed to be just.
” I think the notion that the justice system is designed to be fair is an assumption at best hard to justify.”
I agree. The best we can ever hope for is to avoid needless unfairness.
Thank you for your reply. I agree. . . Somehow don’t you think that we should have higher aspirations for our justice system.
Of course we should have higher aspirations; but we should also be realistic in our actual expectations.
It’s designed to not be unjust, but the design can never be perfect and the system will always fail in some respects. Failures should be investigated and openly acknowledged in order to make way for incremental improvements.
Thank you. I very much agree with your observations.
I wonder if the binary choice between conspiracy theory – which by definition requires multiple bad actors – and cock-up theory – which only needs one – really applies to complex systems like the judicial system. I’ve no idea how you’d label the hybrid.
The car analogy is a good one not least in that there are so many things that can go wrong. Cars, particularly modern cars with thousands of lines of computer code, are very complex systems.
Add that to the ‘influenced by previous failings’ factor and potential points of failure multiply. A witness cocks up complex technical evidence then realises while the trial is underway, but is subject to all the fallacies and self-deceptions that make it hard for any of us to fix our cock-ups?
I suspect there were deliberately malicious actors in the Letby case, but a court with few people competent to assess complex technical evidence just wasn’t up to spotting them, as courts might once have been able to do. Not hard to see how jurors, counsel and the bench could all independently cock-up. Not hard to see how that could be a widespread problem in the system. Like cars, forensic evidence has evolved to fearsome complexity, with scope for a multitude of obscure individual sins to go unseen.
In the aviation world (which I’m not part of, but read certain websites), you’ll often see reference to the Swiss Cheese model for accidents.
Each slice of cheese is a safety barrier, but as the barriers move and change, sometimes there is an alignment of holes across all the slices, and the plane crashes.
No single cause, but multiple simultaneous failures combine in a disastrous fashion. You can see how that model/analogy applies to many different domains including this one.
That is an interesting analogy – thank you.
A ‘systems failure’? It needs adjusting by someone who knows what they’re doing. A committee maybe?
It’s not a system failure, it’s a feature.
While catching and punishing/rehabilitating a perpetrator is the ideal, catching and prosecuting anyone plausibly guilty will do for the purposes of deterring others.
Sir William Blackstone turns in his grave.
Theories are falsifiable, and conspiracies definitely do happen so I think it’s reasonable to have theories about them.
I’m fond of George Monbiot’s idea of “conspiracy fantasies” being the actual problem (https://www.theguardian.com/lifeandstyle/2024/may/04/youre-going-to-call-me-a-holocaust-denier-now-are-you-george-monbiot-comes-face-to-face-with-his-local-conspiracy-theorist). All too often, we see people espousing fantasy that doesn’t stand up to the least bit of critical analysis, and ignoring much more easily-proven issues.
Not all theories are falsifiable: the theory of evolution by natural selection cannot be in any meaningful way be falsified. Not all theories are within the province of experimental science.
And conspiracies certainly do happen – often to cover-up the cockups.
That theory could be falsified by proving that organisms have no mechanism to record changes. Originally, this was effectively a prediction. Then DNA was discovered.
Or it could be falsified by the fossil record proving that organisms do not change over time. Or by there being a better theory for explaining the changes.
Though, of course, falsifiablility does not apply to the underlying mathematical basis of the theory – evolution is a property of systems which have suitable properties and the science part is determining if it applies to a particular system.
It’s the unfalsifiability of many conspiracy theories that make them so enduring and attractive. As they say, you can’t prove a negative. Russell’s teapot: I can’t prove that there isn’t a teapot, too small to be seen with any equipment, orbiting earth. And I can’t prove to universal satisfaction that the Sandy Hook massacre really occurred, because any proof I offer is just part of the vast conspiracy.
I am not so sure. In the case of simple random events – domestic murder, car crashes and the like there is no initiating system to speak of. Our justice system seems fairly good at catching small fry and good at missing the big fishes.
Where I am not so sure is cases like Grenfell and possibly Letby. Having been involved in large scale projects there are often many places along the road where the possibility of bad things or bad practice are ignored or pushed aside as fussy or troublesome. Getting in the way of the larger project, making unecessary trouble and expense or being ‘unhelpful’. Back tracking to identify these places is very difficult.
Not every t gets crossed or i gets dotted, budget cuts and the detail of decision making is seldom documented. Less cock up than part of the initiating system’s design.
It appears to be extremely likely (David Davis used the words “extremely probable”) that Lucy Letby is entirely innocent and that there were no malevolent deaths at CoCH Hospital. The consensus among a great number of significant experts is that the guilty verdict is unsafe, at the very least unsafe. From the very outset this insignificant non-expert’s gut feeling was that Lucy Letby had been set up, was a scapegoat – such is my contempt for all forms of authority, and such is my contempt for large swathes of my fellow man. With the groundswell growing against this conviction it appears only a matter of time before Lucy Letby’s conviction will be squashed. H. M. Constabulary, Crown Prosecution Services, our courts of law – our criminal justice system in its entirety – will have lost one . What then of these esteemed institutions, most particularly of those individuals who populate these institutions, will our criminal justice system deal with them for malfeasance? Will damning and brutal words by officials be withdrawn? Will there be criminal consequences for those who glibly destroyed the life of a young woman?
I also tend to think it likely that she is innocent and not in fact a serial killer. I think it much less likely that a serial killer would continue to defend this. However, I don’t know.
If it does turn out that she is innocent, we should note that there has been no attempted cover up or anything of the sort. On the contrary, there seems to be a real effort to uncover the truth.
As DAG wrote previously, a deliberate strategic decision of the defence may have inadvertently increased the likelihood of conviction. It would have been a gamble to call their own expert, but you could also argue the opposite. It was a gamble not to call one.