19th August 2024
Over at his Substack, the leading legal commentator Joshua Rozenberg states:
“There’s something about the Lucy Letby case that attracts conspiracy theorists. Maybe the truth — that a former neonatal nurse has now been convicted of murdering seven babies and attempting to murder seven others at the Countess of Chester Hospital between 2015 and 2016 — is just too awful to comprehend.”
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The problem perhaps with this view is that miscarriages of justice do happen: indeed the criminal justice system of England and Wales is prone to miscarriages of justice.
This is not to say that the Letby case is a miscarriage of justice: I do not know, and I suspect almost everyone reading this post does not know.
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But here are two reasons why one should be cautious about being dismissive.
First: in the words of a practising criminal barrister (and excellent legal blogger) Matthew Scott:
I was brought up in the Birmingham of the 1970s and 1980s – and I recall campaigners for the innocence of the Birmingham Six being called “cranks” – and far, far worse.
But those campaigners were right – and those who derided them and insulted them were wrong.
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And second: as for the sentiment that some things are too awful to comprehend, one also has to remember the words of Lord Denning, an appeals judge who dismissed a civil claim from the Birmingham Six in 1980 (emphasis added):
“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.
“At the trial the same evidence about violence and threats was given all over again before the jury.
“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.
“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.
“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.
“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.
“It will take weeks and weeks.
“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.
“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.
“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .
“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.
“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.
“Whichever it is, the actions should be stopped.”
But the Birmingham Six were right – and Denning was wrong.
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Sometimes there are appalling vistas, and those appalling vistas can be in any direction.
The vistas can be of horrible crimes (as Rosenberg avers) or they can be of horrible miscarriages of justice (which appalled Denning).
In either case, one flinches.
But I would submit the better view – vista, even – is not to dismiss those concerned about miscarriage of justice in serious cases as “conspiracy theorists” or “cranks” or whatever, but to patiently see if they have any point.
If they do have a point, then nothing has been gained by dismissing them; and if they don’t have a point, nothing has been lost.
And for what it is worth, of course, most failings in the legal system do not need to be explained by conspiracies, but by cock-ups.
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Very well said. Much legal commentary elsewhere comes across as most appallingly smug.
A very sensible perspective.
Like you, I well remember the Denning pronouncement on the Birmingham Six, but perhaps because I was not a lawyer (even trainee) and also because I had been a student ‘rebel’ I was more shocked than convinced by his argument.
There is a quote somewhere that it is sometimes expedient that an innocent person should suffer for the wider good: I do not believe this, and I am sure most serious lawyers strongly disagree. In the Letby case, as you surmise, I know nothing I have not read in various news sources and blogs. But I can imagine that it may arise that – if there are a series of inexplicable events – it is sometimes ‘expedient’ to attribute them all to a particular cause, or person, especially if that person has indeed made a serious error at some point.
The truth is not always out there – or at least cannot always be found.
Denning’s comment, which I will precis as: ‘Faith in the Law and the Judcial System is more important that the innocence of the wrongly convicted’, is as chilling now as it was 44 years ago
Both Kathleen Folbigg and Sally Clark should serve as reminders that it is too easy to convict women when there is circumstancial evidence that encourages juries to use their ‘common sense’, especially when encouraged to do so by ‘expert witnesses’ who know nothing about statistics
I couldn’t agree more that previous cases ‘should serve as reminders’ .. but the problem is they don’t seem to do that.
The criminal investigation into Lucy Letby began in April 2017. Sally Clark died just ten years before that (actually March 2007). Both investigations conducted by Cheshire police, and both depending largely on statistical data about coincidence, which in the Clark case (Meadows’ Law) proved to be wildly mistaken.
Ten years, same force: even allowing for retirements and general churn, I struggle to believe that nobody in Cheshire police recalled such a high profile case – high profile at trial, high profile again at quashing of conviction – high profile again at the time of Sally Clark’s tragic death.
We have to somehow find a response that goes beyond ‘reminders’ and ‘lessons learned’.
“The truth… too awful to comprehend” is that science & stats on which LL was convicted were bunkum.
I am still in shock that: a. This could possibly happen in our courts and b. That so many eminent lawyers (& journalists) have apparently so little scientific education that they simply cannot evaluate the medical data.
Science is not a democracy decided by majority lay vote. The principles and standards of scientific “proof” are completely different from legal standards. It’s clear that wildly implausible medical theory and speculation may stand up in court that falls apart under scientific scrutiny.
If this is the mess that lawyers make of cases involving advance scientific tech/data we need urgent reform for these cases.
The serious problem with that view is that the trial process does indeed allow prosecution expert evidence to be balanced by defendant expert evidence.
But Lucy Letby and her defence team chose not to put forward expert evidence.
And that is hardly the fault of the legal system.
So where does the fault lie?
Letby’s legal team
Letby for not firing her legal team before the appeal
The Appeal Court for not allowing the new evidence that was presented
Or is it no one’s fault that she did not appear to receive a competent defence?
What may – or may not – have gone wrong is the topic of something I am currently writing.
The problem with science and the courts isn’t confined to the strength of the defence, it’s part of a broader question of the quality of the scientific argument and evidence brought to the court in totality.
In the case of the air embolism theories – medical principles and proper scientific evaluation seem to have been completely abandoned. The time for that evidence to have been thrown out was before the start of the trial not part way through as per the request of the defence. But for that – some kind of serious, objective scientific evaluation would have had to occur and I’m not sure how that could be worked into the legal system. (Incidentally the judge made couple of scientific errors in his submission on that question – indicating judges need independent advisors to understand the medical data).
Nor am I convinced that the system of expert witness instructed by each side actually works in these types of cases. As I understand it their duty is to the court, they should not be influenced by those who instructed them, and their evidence should be objective and unbiased. Well these principles have abjectly failed in this case. The system appears to reward bias, simplification, false certainty and the exclusion of data.
So – bringing bad science to court and relying on a good defence to counteract it is deeply risky as well as unscientific. It doesn’t appear to work anyway – Angela Cannings apparently had multiple expert witnesses speak for her and was convicted nonetheless.
Your points are absolutely correct. The medical evidence should have been scientifically established before murder charges were brought.
And apparently they were, contemporary autopsies by dependant and (presumably) forensic pathologists on 6 of the 7 babies, finding specific natural cause for 5 and unidentified but not suspicious for the sixth.
From my meagre understanding these would have been directed by a coroner, coroners having judicial powers.
So how were these either ignored or maybe referred to in passing with no more weight than the self proclaimed and selected ‘experts’. Indeed, if as I read (Private Eye etc) there were autopsies then were there coroners rulings, if not why not, if there were and with natural death recorded, then how can anyone be charged with the murder in the case of a natural death?
I may have misunderstand but thought that coroners enquiries are usually postponed if a trial is expected.
(Not that the legal professional likes to have medically qualified coroners – private brief about the hoops an experienced surgeon with a law degree is trying to jump through to be eligible to be a coroner.)
But what if it is the Prosecution who have erred in not being able to properly analyse ‘evidence’ ?
As always, a clear view cutting through lots of the fog.
In cases such as this, it’s always difficult to work out – on a personal basis – what ‘beyond reasonable doubt’ would mean. Not having heard all of the evidence, it’s impossible to say what I would make of it.
The real challenge for me is that because some of the ‘usual suspects’ are the ones who jump on any bandwagon, I might dismiss legitimate concerns out of hand. (And, in real life, some of them I would definitely describe as cranks!)
My mother visited a prison where one of the Birmingham Six were held a few times, to give talks on marriage.
She was struck by the moral authority that person seemed to have in the prison. Speaking with one of the prison officers about this he said to her that everyone from the Governor down believed the man to be innocent. This was after the first questioning in a TV documentary but years before the convictions were quashed.
I know it’s a trope that all prisoners claim innocence but the idea that prison officers might be particularly skilled at discerning real innocence has stayed with me.
“I know it’s a trope that all prisoners claim innocence…”
It’s not a trope, it’s a lie. Most of them don’t.
It’s also hard to reconcile with how often – according to the police and CPS – the first thing remanded suspects do upon arriving in prison is make a full and detailed confession to the stranger they happen to be sharing a cell with.
With your legal experience would you care to predict how a Judge sitting alone, with the same evidence and argument would have decided the case of Lucy Letby?
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”, by you know who!
That is an impossible question to answer, as the rules of evidence would be very different if there was not a jury trial.
A better question, perhaps, is what a jury would have decided had they had the benefit of defence expert evidence to balance against the prosecution expert evidence.
Or if there had the prosecution expert evidence been approached differently before being put in evidence.
I am no lawyer, In private arbitration an arbitrator can have a Tribunal Expert. I thought a Court could have an Expert Assessor.
I remember the old Colditz television series. In one episode the authorities appoint a new security officer. He tells them that no system can be 100% efficient but that he will reduce the number of escapes to a small percentage.
One starting point might be to ask how efficient we expect our justice system to be. 100%? Surely not. 90%? That seems more reasonable. But that is a lot of unjust sentences.
What do you mean by efficient? Statisticians classify errors into type I and type II. If you care about type I errors, you can get 100% efficiency by convicting everyone. If you are about type II errors, you can get 100% by acquitting everyone.
Once you try to reduce both types of errors, you hit the difficulties of determining the truth and achieving an acceptable balance.
Blackstone famously wrote that “It is better that ten guilty persons escape than that one innocent suffer.” But you might take a rather more extreme view on the grounds that there are an absolutely vast number of crimes that you are innocent of, while criminals can be guilty of only a tiny fraction. For example, you are clearly innocent of murdering each of the more than eight billion people alive today. If you assume that it is very unlikely that an innocent person will be falsely accused, then you’ll be happy with a high conviction rate.
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Of course it’s true that we don’t know for sure whether Ms Letby is guilty or innocent, but there has been sufficient information about, and analysis of the evidence for a reasonable person to be reasonably sure that her guilt was not proved beyond reasonable doubt.
I am sure myself that this was a miscarriage of justice by that standard at the least. Are there any further avenues now open to her?
Thank you for posting this. I had read Rosenberg’s article and was concerned that he was using arguments to close down any further debate without addressing the issues that had been raised by other people. Your quoting of Matthew Scott raises the Irish cases. Also, the Sally Clark/Roy Meadow case seems also to be relevant: abuse of statistics and a Court of Appeal unable to look beyond the information provided in the initial trial.
I note that even Rosenburg himself has made comments on this matter, albeit in a trivial way, which could be described as ‘unintelligent’ in that they make assumptions: he has described Letby as ‘hiding’ papers under her bed. Given that she lived alone, who would she be ‘hiding’ them from? And Rosenburg very probably has office space in his own premises, and may not realise that many people don’t. It may be more likely that she was ‘storing’ the papers under her bed.
The case not mentioned here which did seem most relevant is that of Sally Clark, convicted of murdering her own children after an ‘expert’ claimed the chance of the deaths being accidental was 1 in 73 million. He was an expert paediatrician but he had little expertise in statistics or probabilities and neither did the court. There seem to be echoes of that case here which makes me at least uneasy.
I am writing about that case soon in this context.
I have just reread your post of 26 July which sets out quite clearly the considerations that might have reasonably influenced the defence decision not to call expert witnesses.
But the point that strikes me, as a non-lawyer, is that the judge’s summing-up – which will surely have a tremendous influence on the jury – will include the evidence of the prosecution expert but not (if I have understood correctly) mention any weaknesses or doubts that may have been raised by cross-examination. This is surprising to me, as I would have thought that a summing-up would include not just the direct evidence of witnesses but also a summary of legitimate (because raised by Counsel) reactions to that evidence. But I am not a lawyer.
You make a very good point – which I suspect goes to the heart of what is problematic about this case.
Fully on the fence here, and look forward to your next article.
This is a really good cautionary tale. I was too late for the B’ham 6 or Guildford 4, but I remember Colin Stagg and Barry George’s wrongful convictions and feeling the same way about those, about which dissenting voices (formerly known as ‘cranks’) raised issues at the time. I am convinced that Letby’s convictions will, in the fullness of time, be overturned – but the harm is already done, and as MD in Private Eye says, it would be good if she didn’t have to wait 10 years for evidence for reasonable doubt to get an airing in court.
My partner was doing jury service the week when the Channel 5 documentary on Letby aired in which we learned that a report commissioned for the defence (which we now know offered alternative explanations for the incidents) were not entered into evidence and thus was not even seen by the jury. This threw my partner into a state of extreme anxiety about his own jury experience; in a system where relevant expert evidence can be commissioned but not even shown to the jury, he said, ‘how can a jury ever legitimately find anyone guilty beyond reasonable doubt?’. I found myself unable to answer. People defending this practice (the exclusion of the defence’s expert evidence – e.g. the Law and Justice podcast) are doing so by saying that it may have been judged by her barrister not to have helpful to Letby. That is surely irrelevant; if the purpose of a trial is to seek the truth and administer justice, then surely neither defence nor prosecution should be considering whether expert reports are ‘helpful’ to the defence before entering them into evidence. This is the first time I have learned that this practice is apparently normal, and it has profoundly shaken my belief in the justice system.
I think the problem is that our criminal justice system is adversarial and truth and justice suffer as a consequence.
Inquisitorial systems also have serious problems.
Just to clarify – Stagg wasn’t convicted. The judge excluded the honeytrap evidence and the case collapsed. The police of course continued to make it clear that they thought Stagg was guilty for the next fifteen years, until it became clear Robert Napper carried out the murder.
Lord Denning appeared to be of the view that it was the job of senior judges to protect the establishment and public from inconvenient truths, lest those truths should undermine public confidence in, and the administration of justice, policing and government in general.
But that is, of course, precisely what miscarriages of justice do. And one serious mistake can undermine the good work of the courts in thousands of other cases. Irish confidence in “British justice,” never quite recovered, and not just in Republican circles.
That said, we have our own issues to address…
You quote much more of Denning’s judgement than I’d previously read – and it sounds less outrageously wrong than it does when more selectively represented.
We don’t like to have our certainties challenged. We want to believe, for instance, in the reliability of our judicial and administrative systems. Civilisation depends on that confidence, almost more than on whether it is justified.
But knowledge rarely provides certainty. Even as it makes us objectively safer, it also makes us more anxiously aware of life’s dangerous unpredictability. It’s a tough old world.
I find it interesting (word used advisedly) that many of the counter arguments made to those questioning the convictions seem to revolve around the notion that those making points about evidence are making headline points but did not listen to the whole trial or have not read every word of the transcript etc, and so their contentions are incomplete. However they don’t ever seem to cite any evidence from a greater depth understanding that rebuts the most well known points (statistics/medical evidence/diary etc), seeming merely to assert that it must exist as the jury convicted. To me this very much seems to align with the dismissive notion that it’s all armchair detectives and tin foil hat wearers.
But if there is greater evidence hidden in the detail, why has this not been highlighted? Or have I missed it?
Joshua Rozenbergs comment about conspiracy theorists is very odd for someone so well respected. It isn’t conspiracy theorists who are pointing out the flaws in Letby’s conviction. These are legal and medical experts pointing out statistical errors in the prosecution evidence, flaws in medical evidence (ignoring more likely causes of death) and conclusions from post mortem examinations which are not correct. These things cast doubts which the jury had no knowledge of. They believed the evidence as presented by expert witnesses combined with the circumstantial evidence that Letby was present on each occasion. Not to mention that no expert witnesses were called by the defence.
This is not to say her convictions are unsafe, but there are sufficient questions about the evidence the jury was presented with to cast doubt on them.
I recommend people read MD’s column in the past two editions of Private Eye for a balanced view of the doubts presented.
I, too, am sick of seeing the tired old phrase “conspiracy theorists” used, and not just in relation to those who challenge the Lucy Letby convictions. But particularly in relation to the Lucy Letby conviction.
Now if I were to connect the deaths of Mike Lynch and Stephen Chamberlain and their legal fight with Hewlett Packard, then I could legitimately be called a conspiracy theorist
For Lucy Letby (LL) to have murdered the children all of these things have to be true:
1) LL switched murder techniques and researched them all having left no trace of having done such research;
2) literally all of the initial post mortem causes of death (natural causes or unexplained) missed the murders;
3) LL has the most normal psychological profile of any serial killer ever known – no known background of cruelty to animals, antisocial tendencies, anything;
4) LL’s care of patients aroused zero suspicion through her years of training and practice, the first suspicion arose due to her presence in and around a few deaths or near-deaths, nothing anyone had seen in her actual care of patients;
5) LL committed the murders despite none of her colleagues directly observing her doing so;
6) LL faked her expressions of sadness at the babies’ deaths to families and colleagues.
A related, but separate, issue is whether the cluster of deaths observed is consistent with a badly-run unit and/or normal statistical patterns, what is known as “the law of small numbers”.
The above is not the kind of framing of innocence or guilt that takes place in the criminal justice system of England or Wales. It’s not what the jury deliberated on. But it’s how I – someone with zero legal training but someone with a background in statistics – tend to think about it.
I don’t know how much the prosecution relied on statistical evidence or argument. But it seems quite likely that the jury would have taken into account the fact of several babies dying when only the one nurse was around.
It’s notorious that neither judges nor juries are generally capable of applying statistical arguments appropriately and correctly.
See for example The Use of Statistics and Software Code by Stephen Mason, at
https://ials.sas.ac.uk/ials-blog/browse-past-posts/use-statistics-and-software-code
One thing in particular he says is
“As part of my LLM …, I took the ‘Proof’ component with Professor Twining. Professor Twining did not let anybody join his course until they passed an exam in statistics.”
Lord Denning’s ruling on the Birmingham Six is much misunderstood. What it amounted to was that a civil claim against the police can’t be used to overturn or go behind a criminal conviction without first appealing the conviction.
Although I can see the argument for that, ironically this was exactly how the Post Office scandal ultimately became accepted. The subpostmasters, consisting of a mix of convicted and unconvicted people, managed to get the entire operation exposed by having a selection of those unconvicted bring the civil action.
Perhaps something the criminal system should have reflected on more after the 2019 Post Office appeals eventually quash the convictions, based almost entirely on the civil case.
My post: “…Lord Denning, an appeals judge who dismissed a civil claim from the Birmingham Six in 1980…”
Comment: “Lord Denning’s ruling on the Birmingham Six is much misunderstood. What it amounted to was that a civil claim…”
My post makes the explicit point it was a civil claim – and the post is based on an understanding that it was a civil claim. Denning was not a criminal appeals judge.
I’m not sure the criminal/civil point is the key, rather that the question of police bashing the defendants had already been litigated (including the appropriate appeal process).
Ironically, it struck me that this might have been the first case in the whole saga where they got the right result. And that Lord Denning’s much quoted remarks were quite unnecessary to the result.
There’s a headnote of the decision at
https://judgements.lawnigeria.com/2018/06/05/3plr-mcilkenny-v-chief-constable-of-west-midlands-police-force-and-another-and-related-appeals-midlands/
but that page won’t let me cut-and-paste to quote it here.
The HL appeal decision (called Hunter v …) is at
https://www.bailii.org/uk/cases/UKHL/1981/13.html
I have been fascinated for many years about how differently lawyers and medics engage with, weigh, and decide on ‘evidence’, especially in relation to medical and scientific factors. Since retiring I have taken on medico-legal work, and this disjunction has become even more apparent to me, first hand. I see at least two types of this.
Firstly, medics tend to see things as shades of grey and probabilities, rather than binary true/false. Admittedly, we have to reduce that to a likely ‘normal/abnormal’ for the patient’s benefit, but we have to explain the uncertaines around our decision. In particular, hospital doctors are much less versed in dealing with uncertainty and incomplete information than GPs (who do an amazing job, on the whole, given their task and resources). Arguably, the more we learn, the more we realize we don’t know for certain!
Secondly, medics are not always as aware of the limits of our understanding of statistics and probability as we think we are, or claim to be. Gert Gigerenzer has written extensively about this (see ‘Risk Savvy’, inter alia). See Prof. Roy Meadows for a notorious example.
Many prestigious medical journals have published supposedly peer-reviewed papers which have subsequently found to have methodological failings, often in the statistics (see the late Doug Altman’s articles in the BMJ, passim).
Finally, I can’t help believing that a good advocate can present data in a way that sways lay people, irrespective of the scientific content of the data (if you like, rhetoric and spin trump bald facts, when it comes to the jury).
It strikes me there could be at least two approaches to improve both efficiency and effectiveness of this aspect of trials.
1. Why not have prosecution and defence expert witnesses confer and decide on which bits of the evidence they do and don’t agree on, pre-trial?
That way, only the contentious parts are dissected in court, surely saving time.
2. If a very high stakes case depends on forensic and/or statistical analysis, why can the court not appoint an expert statistician to arbitrate the scientific methodology?
As a lawyer, I can tell you that we too say ‘the more I know, the more I know I don’t know’. Much is grey. Law is a human construct and therefore has its flaws.
There are strict court rules about expert witnesses; how it’s their job to assist the court and not to be an advocate for the side that appoints them. They are meant to agree what they can and report on their differences. Sadly it doesn’t always work and judges often have to admonish experts for failing to do the first and indulging in the latter.
In part it’s our system. But the alternative is the French inquisitorial approach and that has its own disadvantages.
I do agree that we should not close our minds about the Letby case. I too have read Gigerenza. I also used to work with Steve Clarke. He was a very good lawyer. And that was shown as he uncovered the flaws in the prosecution’s case over his wife. Sadly, it was too late.
What is striking to me about this case is something I was only vaguely aware of, that our courts of law and the criminal justice system itself are not driven by the imperative to deliver justice. The majesty of our legal institutions is paramount and justice is incidental. What an almighty shocking state of affairs.
It’s been said that you don’t get justice in courts, you get law.
You rightly put Denning’s absurdly illogical argument in bold.
The conclusion “This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.” does not follow from the premises. In addition he asserts that anyone who does not agree with him is not a sensible person, which commits at least two more logical fallacies.
This argument is analogous to the conspiracy theory argument apparently being put forward by Rozenberg and other eminent commentators. He appears to prefer the claim of the Daily Mail journalist who attended the court every day that Letby was guilty ‘beyond all doubt’. I would like to know who Mr Rozenberg consults when he finds a suspicious lump on his body.
There are many questions about the medical evidence in the Letby case, but I will stick to what I know. Many statistical experts have categorically repudiated the shift chart that attempted to show that Letby was present for all the murders and attempted murders, and several others have opined that the verdict was unsafe. This is very similar to the case of Lucia de Berk in the Netherlands convicted of 7 murders and 3 attempted murders based on faulty medical and statistical evidence. The Royal Statistical Society published a prescient report on the issue.
Green, P.J., Gill, R.D., Mackenzie, N., Mortera, J. & Thompson, W.C. (2022).’ Healthcare serial killer or coincidence? Statistical issues in investigation of suspected medical misconduct’, Royal Statistical Society (September 2022).