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.
So I'm one of your armchair conspiracy theorists, apparently. I am a professor of mathematical statistics, a member of the Royal Dutch Academy of Sciences, a former president of the Dutch Statistical Society. I worked hard in support of campaigns to obtain a retrial of Dutch nurse Lucia de Berk, British nurse Ben Geen, Italian nurse Daniela Poggiali. All four cases are grotesquely similar. Lucia and Daniela now walk free and the case of Lucia de Berk is now considered one of the biggest miscarriages of justice in Dutch legal history. I'm pretty convinced that Ben Geen and Lucy Letby will follow them, though both are going to take a long time. Regarding Lucy Letby, the reason I'm convinced is thanks to knowing a lot of the facts of the case of which you are blissfully ignorant. I'm also well able to judge the scientific evidence as far as it is available, thanks to my work for 50 years in medical statistics; the last 20 also in forensic science (during which time I have advised police investigators and prosecution lawyers as often as defence lawyers). I'm also well able to judge the scientific claims of the prosecution experts in as far as they are public. Their testimony contradicts established science and violates the standard rules for giving expert evidence in criminal courts in England and Wales. Rules which many barristers and judges seem not to know.
Having listened to the podcast I am even more disturbed. The contributors mention of the Post Office scandal cannot provide the comfort suggested it does - not one of those convictions were successfully overturned on appeal to Crim CoA until the chair of the Tech Court (Fraser J) comprehensively dismantled the Post Office *expert evidence* in a civil case - because he was qualified to do so. I also find the absence of any discussion at all of the reversal in the *burden of proof* in the Crim CoA wildly frustrating. In a case mostly involving expert/circumstantial evidence the lack of any real *expertise* of Crim CoA judges compounds the same lack in both prosecution & defence legal teams.
Neither of the contributors were present in court for the trials, read the transcripts of the trials, or read the reports of the experts on both sides & they are simply not in any position to make any judgment on the handling of the prosecution/defence cases here. Reading 58 pages from a Holroyd (I don’t have a high opinion of him as a lawyer) led CoA (+20hrs of a blog) cannot, surely, reassure them. They would be better employed asking themselves the question *how can we be sure the convictions here are really safe* - starting with a presumption that the prosecution &/or defence lawyers didn’t simply *blunder* is hopeless - as we have seen so often but is almost never acknowledged.