Lucy Letby: the judge’s direction

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In his summing up to the jury, Mr Justice Goss instructed the jury:

“If you are sure that someone on the unit was deliberately harming a baby or babies you do not have to be sure of the precise harmful act or acts; in some instances there may have been more than one. To find the defendant guilty, however, you must be sure that she deliberately did some harmful act to the baby the subject of the count on the indictment and the act or acts were accompanied by the intent and, in the case of murder, was causative of death [...].”
Later:
“In the case of each child, without necessarily having to determine the precise cause or causes of their death, and for which no natural or known cause was said to be apparent at the time, you must be sure that the act or acts of the defendant, whatever they were, caused the child’s death, in that it was more than a minimal cause. The defendant says that she did nothing inappropriate, let alone harmful to any child. Her case is that the sudden collapses and deaths were or may have been from natural causes or from some unascertained reason or from some failure to provide appropriate care and were not attributable to any deliberate harmful act by her.”

This is a standard direction, likely adapted from a pre-prepared script used in similar cases. In principle, it is undoubtedly sensible: it is a pragmatic way of resolving a probabilistic conundrum which might otherwise arise where, for other reasons, a jury has no doubt that the defendant is guilty, but it is just not clear precisely how the defendant carried out the crime.

Being super-analytical for a moment, note there are two parts to this direction, and Mr. Justice Goss introduces them in the reverse of their logical order.

1. You must be sure that Ms. Letby, specifically, deliberately did some harmful act to the babies that she realised was likely to kill them.
2. If, and only if, you are sure of that, you do not have to be sure of the precise harmful act or acts she carried out.

This is all still quite abstract, so let’s take a hypothetical example.

The tragic case of Bill and Nancy

Imagine a murder trial where there is unimpeachable evidence of the following:

Nancy was alone in an otherwise empty room. Bill entered the room, carrying a cricket bat and a baseball bat and closed the door behind him. No one else entered or left the room. Several credible witnesses, who positively identified the voices, overheard the heated argument that ensued.

It culminated with Nancy shrieking, “No, Bill! Please don’t beat me! No!”
Bill replied, “Sorry, Nancy, you asked for it.”
Shortly afterward, Bill was seen leaving the room scowling, throwing both bats into a nearby fireplace as he stormed off. Before they could be recovered the bats were burnt beyond all recognition. Shortly afterwards, Nancy was discovered in the room beaten to death.

Here, a jury can, of course, convict Bill. There is no doubt he murdered Nancy. It does not matter to the jury’s verdict which weapon he used: It definitely was him, it definitely was one of the weapons. There are no other possible explanations for her death.

This is the reason for a jury direction like the one Mr. Justice Goss gave to Ms. Letby’s jury. You can imagine Bill’s judge directing his jury the same way:

If you are sure that Bill deliberately beat Nancy with a blunt instrument, you do not have to be sure of the precise blunt instrument or instruments; there may have been more than one. To find Bill guilty, however, you must be sure that he deliberately beat Nancy with a blunt instrument and his act or acts were accompanied by the intent and causative of death.

We can see at once that it is sensible, if given in the right circumstances: it would be unthinkable for Bill to escaped conviction because his jury was unsure on this point.

In Bill’s case, it was clear that that he beat Nancy with a blunt instrument: we just don’t know which one, and it doesn’t matter. There is no other possible explanation.

Is Ms. Letby like Bill?

Ms. Letby’s case is different. There is another possible explanation. The babies might have collapsed and died without anyone trying to murder them. They were all vulnerable infants in a neonatal intensive care unit. They were, by definition, at elevated risk of collapse and death due to natural causes. If they weren’t, they would not be in an intensive care unit.

So we can see here, that the important part of Mr. Justice Goss’s direction part he put second, but I put first:

You must be sure that Ms. Letby specifically, deliberately did some harmful act to the babies that she realised was likely to kill them.

If you are not sure of this, you never need to worry about whether you know precisely what that act was. You are not sure it was her at all.

For, if there is an open innocent explanation, how can you be sure Ms. Letby is a murderer unless you do know exactly how she did it?

It is hard to frame hypotheticals here because the sort of evidence that usually makes us certain a defendant is guilty is direct eye-witness evidence that they committed the crime, or circumstantial evidence so closely adjacent to the crime that there is no credible inference one could draw other than that the defendant is guilty.

If there is unequivocal evidence of murder — stab wounds, gunshots and so on — it is usually not difficult to infer a specific action causing the death. Usually, without direct evidence of an identified perpetrator committing murder, there is doubt that it was that perpetrator. Bill and Nancy’s case is highly unusual: it certainly was murder, but yet there were no eye-witnesses. There is no direct evidence of the murder. This unusual case is the one in which Mr. Justice Goss’s jury direction is justified.

Some other cause, unknown, behind the collapses?

But Ms. Letby’s case was not like that. There was no direct evidence that she committed any crime. And each piece of circumstantial evidence suggesting she might have was weak. The Prosecution case was based on an overwhelming accumulation of “little arrows” supposedly pointing to Ms. Letby.

Furthermore, the defence raised a plausible explanation for each of the deaths that the prosecution did not — logically could not — entirely rule out: that the children collapsed and died because they were very sick. That there was no murder, by anyone. There was some other cause, unknown, behind the collapses. Such a possibility did not exist for poor Nancy. It did for Ms. Letby.

To be clear, the Crown could rebut the possibility of a natural explanation, but only one way: by demonstrating, with evidence, beyond reasonable doubt, precisely how Ms. Letby caused the collapses.

Without clear evidence of what Ms. Letby did to them, there is residual doubt as to why the victims collapsed: there must be. How can the jury definitively rule out the potentially unlimited class of unknown natural causes, without being sure of the precise harmful acts by which Ms. Letby committed these crimes?

Say tests on one of the victims return an unusually high insulin reading.

This is consistent with both factitious insulin — prima facie evidence of malice and an undiagnosed hypoglycaemic episode. If Ms. Letby was reliably witnessed administering insulin ten minutes before the victim collapsed, we can probably rule out the possibility of hypoglycaemia. But there must be such evidence. There was no such evidence. As it stands, hypoglycaemia is still a reasonable possibility, until some evidence is presented that presumptively rules it out.

In Bill and Nancy’s case, we can be sure that there was murder even though we don’t know Bill’s precise method.

In Ms. Letby’s case, we can only be sure it is murder because we know the precise method. That is how we rule out non-malicious alternative explanations.

Mr. Justice Goss’s direction, therefore, seems unnecessary. It seems misplaced. The circumstances in which it might be needed do not apply. It also carries a risk of prejudice: the jury might construe it as permission to lower their analytical standard. They may have understood the Judge himself to hold the view there were grounds for certainty that Ms. Letby was guilty regardless of their certainty about what she actually did to kill the children. (He said no such thing, to be clear.)

In Ms Letby’s case, the victims’ “manner of collapse” did not, to the exclusion of anything else, imply malice. We know this because in every collapse that led to a formal medical examination, the examination concluded — based on the live, real-time evidence, which was the best it could get — that the collapse had natural causes.

The Crown must definitively displace this presumption. The only way of doing that was by showing precisely how Ms Letby caused the collapses.

We are not in a situation where “all plausible causes of death involved Ms Letby. There are plausible innocent explanations. So the second part of the judge’s direction, not the first, is the important part.

You must be sure that she deliberately did some harmful act.

Implausible coincidence as compelling evidence

The direct forensics do not seem directly to implicate Ms. Letby, much less displace the possibility of an innocent explanation. They do not justify Mr. Justice Goss’s jury direction. Could there be some meta-evidence that could do so instead? As discussed elsewhere, the main — only, really — evidence the prosecution offered that implicating Ms. Letby personally was her commonality. She left no “calling card”. There was no tell, no slip-up, no blast signature indicating Ms. Letby’s unique presence at each event. All we have is the seemingly implausible coincidence that she, and only she, turned up like a bad penny at every collapse for which she was charged.

Once may be happenstance, twice coincidence, but by the time we get to the twenty-second occasion we are surely past the point of even enemy action.

But this is not positive evidence, but probabilistic inference. Its credibility can only be assessed by a statistical analysis, and one was not carried out. The Crown Prosecution Service nixed a police line of inquiry into exactly that question.

Now these findings are not determinative of Ms. Letby’s innocence, but they do indicate there are plausible alternative explanations such that the jury cannot be sure, without better evidence, that Ms Letby was responsible.

The evidence was sketchy. I wonder, did this judge’s direction licence the jury to let its standard slip?

See also

• Lucy Letby