Letby: the KCs’ view
Letby: the KCs’ view
Two leading criminal specialists say a further appeal would be challenging
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.
But what all those who have questioned the juries’ verdicts seem to share is only a partial knowledge of the evidence. By contrast, a Daily Mail journalist — one of only four reporters who sat through almost every day of both of Letby’s trials and her appeal — said last month she believed the evidence had proved Letby’s guilt beyond all doubt.
Anyone else writing about the case needs to begin by reading the 58-page judgment released by the Court of Appeal on 2 July. I summarised what I saw as the court’s main findings in a piece published the following morning.
Podcast
The criminal justice system can be challenging for outsiders to understand. So we should all be grateful to Tim Owen KC and Lord Macdonald of River Glaven KC for analysing the Letby case in the latest edition of their popular podcast Double Jeopardy. You can listen to it on:
This episode was recorded before the Telegraph reported an error in door-swipe evidence used by the prosecution at Letby’s first trial. During her subsequent retrial — which led to a further conviction for attempted murder — both the prosecution and the defence accepted that this had been a genuine mistake. Nobody seriously suggests it provides grounds for a new appeal.
As the Crown Prosecution Service said:
Two juries and three appeal court judges have reviewed a multitude of different evidence against Lucy Letby, and she has been convicted on 15 separate counts following two separate jury trials.
We confirm that accurate door-swipe data was presented in the retrial.
We have been transparent in clarifying this issue and rectified it for the retrial. We are confident that this issue did not have a meaningful impact on the prosecution, which included multiple strands of evidence.
No defence experts
One of the most intriguing aspects of the Letby case is that defence lawyers called no expert medical witnesses to give oral evidence. As Owen and Macdonald explain in their podcast, we may never be told why that was.
Meanwhile, Dr Phil Hammond, who has written extensively on the Letby case for Private Eye, reports comments made by Dr Michael Hall, medical adviser to Letby’s defence team. The comments were included in a letter offered by Hall to the British Medical Journal for publication.
Hall again questions the defence tactics. He concludes that doctors and lawyers need to recognise and respect the boundaries of their different areas of expertise.
As Hall will certainly have been told, though, lawyers will always consider whether calling a witness may do more harm to their case than good. A defence witness may help the defence on certain issues but then buttress the prosecution case when cross-examined.
And, as Letby must have been advised, if she had any concerns about the way she was represented at the first trial she could easily have instructed a new defence team for her retrial.
Owen and Macdonald are highly experienced criminal specialists. They accept that their podcast is not going to quell the doubts that have been expressed since Letby was first convicted. But I certainly feel much better informed after listening to it.
Update 27 August: Owen and Macdonald have returned to the Letby case in a new episode of their podcast. They respond to some of the responses they received to their earlier podcast but stand by their earlier conclusions.
Update 6 September: I was interviewed by the Dublin-based Indo Daily yesterday about the Letby case. You can listen to their podcast here.
A quick question: Presumably, expert witnesses for the prosecution provide written reports to the CPS. Presumably the defence has access to them, too. Presumably these are also made available to the jurors. Are they listed anywhere? Can one request a copy? How can we have "open justice" if scientific documents written by scientists and used in the trial are only available to trial lawyers and to lay jurors (on their iPads?).
"During her subsequent retrial — which led to a further conviction for attempted murder — both the prosecution and the defence accepted that this had been a genuine mistake. Nobody seriously suggests it provides grounds for a new appeal."
It should do, but from the narrow legal point of view it doesn't. The problem here in my opinion is that the the UK legal system has now got itself stuck in a catch 22 situation. The root cause is that “trias politica” is not well implemented in the UK. The judiciary are independent, yes, excellent, but the judiciary also create law on the fly, since judges’ past rulings become part of case law. Now an appeal court judge has recently ruled that pre-existing science cannot be used to reopen a closed case since the defence had access to it and chose not to use it. The appeal court judge chose to completely ignore the actually presented scientific evidence which basically destroyed half of the case again Lucy Letby. (And the rest is equally non-existent, in a well-informed scientist's mind). The CCRC can ask closed cases to be reopened but they only do that if there is new evidence which can be argued to completely change the whole picture presented originally in court, and they will only do that if they believe the court of appeal will accept their submission to reopen the case. The court of appeal includes the same judges who recently have made those rulings in the Lucy Letby case, seemingly expressly to lock it down tight, for ever. Adding some nails to Lucy's coffin.
Now, the CCRC was originally set up - for political reasons - and it was given powers which previously had been the prerogative of the Home Secretary. So it is clear that the only route towards a retrial is that the Home Secretary reclaims the powers which they had delegated to the CCRC. And the only body which can order the Home Secretary to take that step is parliament. Parliament is the sovereign (ie supreme) power in England.
You see how dangerous it is to give the judiciary *too much* power. This is like Iran, where the ayatollahs (ie, “the established church”) have too much power. Trias politica, yes. Separation of the powers. But parliament is sovereign. If the laws are evidently wrong they have to be changed.
The argument that reversing convictions will destroy people's trust in the rule of law is a two-edged sword. Hold off reversing an unjust conviction too long and with stupid legalistic excuses will destroy people's trust yet more. Trust has to be earned. Trust in the criminal justice system is earned by its making wise decisions, recognising errors, and learning from its errors. (As the Dutch system did in the case of Lucia de Berk).