Courts and the administration of justice – Page 2

Miscarriages of Justice: the Oliver Campbell case

21st September 2024

How a recent appeal case is instructive about how difficult it for the English legal system to right a wrong

Over at Prospect I have done a piece on the recent Oliver Campbell case.

Any person with an interest in miscarriages of justice should read the judgment in this case.

For what is striking about the appeal judgment is not so much that the convictions was quashed but just how close the court of appeal came to not quashing the convictions.

Indeed, if you read the judgment in a linear way, from start to finish (as opposed to how lawyers will tend to look at a judgment by skipping to the end), you have to wait until paragraph 133 before you see which way the court is going to decide this case.

Until this paragraph, the judgment reads as if all the grounds of appeal will fail: it is the judicial equivalent of a sudden brake turn on a lengthy journey.

Judges do not use words lightly, and so it is notable that the judge does not just say “unusual circumstances” but “very unusual circumstances” (emphasis added):

The exceptional nature of the case is again emphasised again a few paragraphs later (emphasis added):

In other words: the convictions were almost not quashed. It was a close-run thing.

But what happens next in the judgment is disconcerting.

By way of background: when the court of appeal quashes a conviction it normally considers whether there should be a retrial.

In the circumstances of this appeal – where 1991 convictions have been quashed because of reliability of the evidence of things said in interviews in 1990, and where the appellant has served ten years in prison for the offences – you may think that putting a brain damaged defendant through a retrial would not a good course of action.

But the court of appeal comes very close to ordering a retrial (emphasis added – and please read the reasoning in full):

How this could be a “finely-balanced decision” would perhaps astonish any sensible person.

The appeal judgment shows that Campbell was lucky three times: the Criminal Cases Review Commission made a reference in 2022 to the court of appeal (after it refused to do so in 1999), the quashing of the convictions almost did not happen, and the madness of a retrial in these circumstances was even more narrowly averted.

And a read of the judgment shows generally how difficult it is for any miscarriage of justice to be corrected – especially when the appeal relies on evidence that was before the original court, or on evidence that could have reasonably placed before the original court.

Of course: a justice system should be as much about quashing unsafe convictions as it is about imposing convictions.

But as averred in Prospect, the justice system of England and Wales imposes criminal liability with far more ease than it ever removes it. (Read the rest of my article here.)

Also of interest are the Criminal Cases Review Commission’s reasoning for the referral in 2022 and the informative pages of the estimable barristers of Foundry Chambers who acted for Campbell (here and here).

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A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong

30th August 2024

One accusation that is often made of anyone with an interest in possible miscarriages of justice is that they are “conspiracy theorists”.

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.

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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Update – what is coming up.

29th August 2024

I am currently writing a critical and – I hope – balanced article on the Lucy Letby case, for Prospect magazine.

That article will be accompanied here on this blog by a post setting out the issues about the case in more detail.

It is not an easy case to write about.

Partly this is because the case is complicated, based on circumstantial and expert evidence, over two trials.

Partly this is also because that some of the contended problems with the case go to the methodology of investigation, rather than to the prosecution case as presented at the trials. This means that finding fault with the investigation will not be directly relevant to faulting the convictions if that was not actually the basis on which she was convicted.

And partly it is because there are many with very strong but contrasting opinions about the case, and I am seeking to anticipate the most obvious counterpoints.

(Nonetheless, the final article will probably irk both ‘sides’ of the discussion on the case.)

For what it is worth, I do not know whether she is guilty or not guilty – and that is, of course, a matter for a court – either with a jury or by judges at a court of appeal.

But it does seem that there are non-trivial issues about the expert evidence relied on by the prosecution of Letby.

If so, this may raise a serious question about whether the juries were then placed in a position where they could not properly consider the expert evidence relied on the prosecution in this case.

In any case (excuse the pun) it does seem that a critical and balanced account of the case may assist in the public understanding of law.

In essence: if there was a miscarriage of justice – and that is an ‘if’ – how could it have actually come about? What, if anything, failed, in the process?

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Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024

One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21^st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice

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.”

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.

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.

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.

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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What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable

7th August 2024

On the site that is still known as Twitter, Elon Musk has again tweeted that ‘civil war is inevitable’.

The thing is that civil wars are rarely inevitable – at least not in the short- to medium-term.

This is because civil wars occur, almost by definition, where there is some kind of pre-existing polity which has broken down.

This is what makes them ‘civil wars’ as opposed to any other form of human conflict.

A polity often has two key features.

The first feature is a means of regulating disputes – political, legal, social, religious disputes, and so on.

The second feature is a means of enforcing order – usually a form of legitimised coercive power.

It is only when a polity fails to resolve a dispute and then does not enforce order that there risks being a civil war.

The presence of perceived contradictions within a given society is not sufficient: a ruler or ruling class can be quite adept at keeping power despite significant domestic discontent.

Some polities – from tyrannies to loose confederations – can exist when with stark differences between those who are governed.

In the longer term, there may be a case for a ‘civil war’ being inevitable.

Most political systems will break down eventually, after a century or two.

In what is now Great Britain and Ireland there have been various civil conflicts on and off for hundreds of years.

If Musk waits long enough then there may again be a civil war one day.

But one suspects that is not what he means.

What is often meant by those who say civil conflict is inevitable is that they normatively think that civil conflict should be inevitable.

That they believe there should be a civil conflict on socio-economic or ethnic or religious or some other lines within a given polity.

But, to adapt Karl Marx, ‘the history of all hitherto existing society is the history of those in power often staying in power to the frustration of those who want to have a revolution’.

Civil wars are rarely inevitable.

And civil wars deliberately brought about and signalled in advance are rarer still.

If the polity fails to resolve the underlying disputes in a given society – including by the means of effecting fundamental constitutional or socio-economic changes or by granting autonomy or independence to a certain part of the polity – then there is the additional hurdle of the state being normally in a strong starting position to enforce and maintain order.

To say that one thinks normatively there should be a civil war is not the same as saying positively that there will be one.

Yes, every polity is capable of collapsing, and a civil war is thereby always a possibility.

But they are often not predictable when they do happen.

And they then only seem inevitable in hindsight.

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How the criminal justice system deals with a riot

5th August 2024

Thirteen years ago, I went along to the south London shopping centre expecting to report on a riot. But there was not a riot.

And so in a splendid exercise of journalism, I filed a piece on a riot not taking place.

The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ.

The paragraphs above are adapted from a post I wrote here in 2021, ten years after the 2011 riots.

That 2011 post, in turn, was prompted by comments from a former CPS prosecutor who thought that the prosecutions had been too harsh for some of those “caught up” in the 2011 riots:

“We have to treat people differently otherwise the system’s unfair and so there were people who I regret even having anything to do with,” said [Nazir] Afzal. “In a different atmosphere, in a different environment, they would have been diverted from the justice system altogether – given conditional discharges, probation, restorative justice, pay compensation. But they got rolled into everything else because we didn’t have resources.

“I mean 2011 was the beginning of austerity. I was tasked immediately on taking the role to reduce my budget by 25%, which meant I had to release lots of prosecutors, administrative staff. The police were doing the same, police stations were closing. So we just had to work with the limited resources we had and that meant that we were forced to apply the same rules to everybody and less discretion than we would have been able to exercise otherwise.”

In 2021 these seemed good points.

Now it is 2024, and there are more August riots.

The same former CPS prosecutor quoted above has referred to his 2011 record when commenting on the riots of the weekend just gone:

Are the two stances consistent?

Are the regrets stated in 2021 consistent with the pride shown in 2024?

And what is the right way – or the best way – for the criminal justice system to deal with a riot?

One way is to treat the various offences in a riot as discrete acts, and to treat them as they would be treated by the criminal justice system if there was no context of wider disorder.

Any criminal damage would be treated as criminal damage would normally be treated, and any arson, ditto.

This would be to treat the rioters as simple criminals, regardless of the wider situation of lawlessness.

There is some merit in that position – and it indicates a justice system unfazed by the supposed “legitimate concerns” of the rioters.

(Of course, if a ‘legitimate concern’ is a view held regardless of the evidence, and which is used to justify any hateful thing done or said, it is neither a ‘concern’ nor ‘legitimate’. It is an excuse, cloaking something very different.)

In essence, this stance is that the rioters are criminals pure and simple, and so should just be treated as criminals, pure and simple.

Another approach is that riots change things – that they change everything.

A riot is, on this view, not a collection of separate criminal acts – each of which could be tried and punished separately.

There is instead an additional quality about the many criminal acts in a riot that means that they should be punished far more harshly than if the criminal acts had been committed in isolation.

This was certainly the approach which the criminal justice system adopted in 2011 (and which the former CPS prosecutor suggested in 2021 may have gone too far in some cases).

One lawyer who gave advice to those being prosecuted in 2011 has recalled that grim experience:

The rioters in parts of England over the last few days will, it seems, be prosecuted as rioters, and not just as individuals doing particular criminal acts.

Few, if any, sensible people will disagree.

This was not normal, everyday criminality.

Indeed, the disturbances of the last few days seemed worse than riots. They appeared to be more like concerted pogroms. They looked as if they were politically directed and coordinated.

In essence: what happened may have been more akin to terrorism – deliberate political violence.

SCHULTZ: It is nothing! Children on their way to school! Mischievous children! Nothing more! I assure you! Schoolchildren. Young—full of mischief. You understand?

~ Cabaret

There has in the United Kingdom long been a special branch of criminal law that dealt with terrorism offences.

This is because the criminal law also does not treat terrorists as normal criminals, pure and simple.

There is an additional quality to the criminal acts in question which mean a different legal response is required. Indeed, terrorism law has offences where there is no non-terrorism criminal counterpart.

It may well be that those who directed – or at least incited and encouraged – the 2024 rioters from afar will find that they have brought themselves within the scope of various terrorist offences.

There is no one way for the criminal legal system to deal with a riot.

But.

Those who get involved in a riot should not be surprised when the legal system treats their offence as being worse than if the criminal act had been done in another context.

And those who incited and encouraged the rioters should also not be surprised if the legal system treats their involvement as being within the context of terrorism.

For, to conclude, section 1 of the Terrorism Act 2000 is in broad terms:

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The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)?

26th July 2024

Often the criminal cases that feature prominently in the news are really not interesting from a legal(istic) perspective.

One could quite happily commentate on interesting legal issues and never engage with a case which has been on the front pages.

And one could follow ‘true crime’ stories and never come across an interesting legal issue.

There is usually not much of an overlap: ‘true crime’ and earnest, plodding legal commentary normally do not have that much in common.

The Lucy Letby case has been prominent in the news now for some time.

She has been convicted of multiple murders and attempted murders.

But is there anything in her case which is of wider interest – or of concern – in respect of the legal system?

Is there an issue here about the process of criminal justice?

Some people maintain she must be innocent; and some people insist she must be guilty; and there are many websites and social media posts setting out both of these positions.

This blogpost is not one of them.

I do not know if she is guilty or innocent. That is a matter for a jury – or an appeal court.

She may be a serial killer, or she may be a victim of a miscarriage of justice; that is for others to decide.

But there is, I think, an issue here of potential wider concern.

This may be a rare example of a front page ‘true crime’ story which also raises an important issue about the legal system.

And that issue is about the role of prosecution expert evidence in an adversarial criminal trial when the defence elects not to put in their own expert evidence (for good reason or bad).

Lucy Letby was convicted, in part, on the basis of expert evidence.

The case against her was not entirely based on expert evidence; there was other evidence put before the jury.

But, on any view, it was an expert evidence heavy prosecution.

And that is not unusual – or wrong: there are many criminal prosecutions which depend on expert evidence.

In our adversarial system, what often happens in a jury trial when there is reliance by the prosecution on expert evidence is that there is also expert evidence put forward by the defence.

In principle, the expert owes their duty to the court – and not to the party who has instructed him or her.

In practice, of course, the prosecution will put forward expert evidence that supports their case, and the defence puts forward expert evidence which supports their case; the experts are then examined and cross-examined by lawyers; the judge sums up; and the jury then weighs the evidence of the experts in its deliberations.

This system is not perfect, and indeed no litigation process is perfect; but it generally works.

But what happens when the defence, for some reason, does not put in their own expert evidence?

The prosecution expert evidence will still be examined and cross-examined by lawyers – and the judge will still sum up, and the jury will still deliberate.

But the questions of the lawyers – especially the cross-examination – are not themselves evidence.

The only expert evidence is that put in by the prosecution.

The jury do not get to compare and contrast the expert evidence of the prosecution and the defence; the judge gets only to sum up the expert evidence of the prosecution.

In the first Lucy Letby trial, for some reason, there was no expert evidence put in by the defence.

We do not know that reason.

What we do know is that the defence team continued to act for her on appeal and so it would seem that their client is not dissatisfied with the conduct of the defence. This would indicate that there was, at least for their client, a good reason for not putting in expert evidence, else – presumably – she would have instructed new counsel for the appeal.

If so, could there be a good reason?

Yes, indeed there could be more than one good reason – though this is supposition, for we do not know the reason.

One possible good reason for there not being expert evidence put in by the defence has been identified by the experienced criminal barrister Adam King in a strong piece setting out why there may be a miscarriage of justice in this case:

“One reason the defence might have chosen not to call Dr Hall (and I am speculating here) is if they felt they had so thoroughly undermined Dr Evans that they were better off leaving it at that. That would be a big tactical call, but covering your own back is not always consistent with protecting your client’s interests.

“So, for example: if your own expert would contradict much, but not all, of the Crown’s expert’s conclusions, and you believe the credibility of the Crown’s expert has been totally destroyed, you might judge it prudent not to put your own expert in the witness box. Avoiding the potential for future criticism and hindsight regret by putting your client in what you believe will be a worse position — by calling your own expert — is not a boss move. This is all speculation, but I guarantee that careful thought went into the decision not to call Dr Hall. None of this, though, would mean the conviction is safe.”

Another possible reason not to call expert evidence is that your client’s case is that the relevant area of knowledge is such that no actual expertise is possible. This may be because of the lack of reliable data, or because it is a novel or developing area.

If so, calling an expert on that point would contradict that position.

We do know that Letby’s defence lawyers put in a detailed submission at the end of the prosecution case in the first trial that the prosecution had shown no case to answer and that prosecution expert evidence should be ruled inadmissible. It may have been that calling expert evidence would have undermined the prospects of what may have been a successful application.

We don’t know.

In essence, the decision not to call expert evidence may have been a perfectly legitimate one for Letby and her lawyers to make in the circumstances of her case.

And one should remember – and this is a crucial point – it is for the prosecution to make out their case.

It is for the Crown to prove their case to the criminal standard of proof, and not for the defence to disprove it.

But.

While it may have been in the interests of Letby and her lawyers not to put in expert evidence, this has the knock-on effect of there being no expert evidence from the defence for the jury to consider.

That prosecution expert evidence may be subject to robust cross-examination – but the questions of the barrister are not evidence, and the jury have to decide the case on the basis of the evidence.

At this point, many legal folk and others would say that the fault here is with Letby and her lawyers. The defence had the opportunity to put in their own expert evidence, and they did not do so. And that the convictions were the consequence.

But it may be that response avoids a key issue.

It is for the prosecution to prove their case, and not for the defence to disprove it.

It is thereby for the prosecution to ensure that the expert evidence on which it seeks to rely is as sound as possible.

The prosecution cannot shrug off this responsibility and say that it can be cured by the defence expert witnesses.

And there is concern that the prosecution expert evidence in the Letby case was not sound to begin with.

If that concern about the prosecution expert evidence is well-based – and this is a legal blog and not a medical or science blog, and so like many of you I have no idea – then the question is what, if anything, can and should the legal system do about it – especially when the defence (for good reason or bad) do not put their own expert evidence in.

Here there are rules on what experts can and cannot do and say, and on what their duties are to the court; here there are also rules on the admissibility of expert evidence; and there will also be cross-examination of the expert by defence lawyers.

There are safeguards.

But.

The key safeguard against poor prosecution expert evidence in our adversarial system is that the defence can put in their own expert evidence for the jury to weigh against it.

But when the defence do not do that (for good reason or bad) then there is perhaps a system failure of the adversarial system.

Here one can (again) say that is the fault of Letby and her lawyers.

But even taking that (fair) point at its highest, there is a potential wider problem.

A lot depends on the soundness of the Letby conviction.

Indeed there is an important public inquiry which is predicated on the basis of the convictions being sound:

If, as some insist, the prosecution expert evidence in the Letby case was unsound, then any inquiry based on that expert evidence being sound will have challenges.

“MD” in the current edition of Private Eye sets out the implications:

“…[the] Thirwall public inquiry may inadvertently be derailed by experts who say under oath that Letby wasn’t stopped sooner because there were far more plausible reasons for the deaths than murder.”

The cases involving Roy Meadow show that we should always be alert to the problems of expert evidence.

If – and it is an if – the prosecution expert evidence in the Letby case was unsound, then there is a hard question of what else the criminal justice system could/should have done when a defence does not put their own expert evidence.

Given her decision not to put in expert evidence, is it the case that she had the fairest trial possible in the circumstances?

Or is there something else the criminal justice system could/should have done in this case – and similar cases?

It may be that there is a lacuna here – and not one which is easy, or even possible, to address in our adversarial system.

In essence: what can a criminal court do in respect of unsound expert evidence when the defence elects (for good reason or bad) not to put in their own expert evidence?

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

1st June 2024

On balance, the prosecution of Donald Trump in New York did not look likely to succeed.

The prosecution had to show that certain business records were falsified at the direction of or on behalf of the defendant, and falsified for a further unlawful purpose.

That was a lot for a prosecution to prove – especially when there is no documentary admission that the defendant said “I direct that these records be falsified” and “I also direct that those records should be falsified for this ulterior wrongful purpose”.

What made such a prosecution even more difficult was that a key prosecution witness was a self-confessed liar with a self-confessed grudge.

And what made such a prosecution even more difficult than that is that the jury verdict had to be unanimous.

Regardless of the celebrity – or notoriety – of the the defendant in this particular case, these general features made this look like an ambitious prosecution.

But.

The prosecution pulled it off.

The prosecution were able to satisfy the unanimous jury that the records were falsified at the direction of or on behalf of Trump for the unlawful purpose of affecting an election. The prosecution was able to corroborate the evidence of its key witness.

Overall, and again regardless of the identity of the defendant, it was an impressive piece of lawyering.

And as Joel Taylor remarked on Twitter, it was also an impressive piece of jurying.

Yet it must be said that it was an unimpressive piece of defending.

Of course, Trump had the right – indeed, as an American, a constitutional right – not to give evidence.

And, of course, it was open to the defence to test the prosecution case without putting forward a positive account of the facts – especially in an elaborate and complicated case like this.

But one gained a sense in this case that a wiser defendant would have allowed the defence to adopt a different approach.

Yes: Michael Cohen, the self confessed liar and grudge holder, could be attacked in respect of his credibility.

But when the prosecution has been careful to corroborate almost all the material points in his evidence, then attacking Cohen’s credibility may not be sufficient.

The defence strategy here was not hopeless – it could have worked had the jury become preoccupied with Cohen – but it was a risky one to adopt.

The defence really had to put forward an overall positive explanation for the sequence of documented communications, authorisations and payments that the prosecution put before the jury – an explanation more plausible (and lawful) than the (unlawful) explanation advanced by the prosecution.

An explanation that would, in essence, raise reasonable doubts that that the prosecution version of events would be the true one.

And it appears that the defence did not do so, leaving the jury with only one explanation that covered the mass of documentation that fraudulent records were created to disguise unlawful payments: the prosecution’s explanation.

Trump and his lawyers wanted to tell the story of a corrupt prosecution and a dishonest witness, but the story they really needed instead to tell was that which explained the entirety of the evidence before the jury.

They ended up telling the wrong story.

Previously I have pointed out that a court hearing – a trial – is where Trump is a fish out of the water:

What works for Trump in one, well-versed context does not work for him in another.

One can see why, among other reasons, he wants to put off the other court cases as long as possible, even if he can weaponise them for fund-raising and campaigning. Trials are a thing he cannot dominate by his usual strength of will and cunning alone.

(This also may be related to his aversion, when in office, of committing troops to combat situations – another means by which he would lose control of events and narratives.)

Because Trump cannot win in court, he has to win outside of court.

Just like because he did not win the last presidential election, he has to win outside of the electoral college.

And he does this, of course, by discrediting the process – by attacking the very legitimacy of institutions.

This hyper-partisanship regarding “stolen” elections and “corrupt” courts is dangerous.

Legitimacy can be fragile, and if the legitimacy of democratic and judicial processes is undermined then a polity will quickly become unhappy and fractured.

For if people do not believe in the legitimacy of democratic and judicial processes then they will tend to find other, less peaceful ways of addressing their political concerns.

And this is where the political and judicial systems themselves need to mount a plausible defence.

Trump may not be the master inside a courtroom, but he is a formidable and politically lethal operator outside the courtroom.

As always, it is not enough for justice to be done, justice needs to be shown to be done.

Trump and his supporters are now mounting an outright attack on the legitimacy of political and judicial institutions.

It may not only be Trump that needs a good defence strategy.

Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party. Pre-trial litigation is often deal-making by another name. But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important. A third party – the judge (and sometimes jury) takes power. Trump’s blustering and bargaining is not well suited for this. Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath. For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted. I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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