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Lucy Letby: the judge’s direction: Difference between revisions

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{{a|crime|}}{{drop|I|n his summing}} up to the jury, Mr Justice Goss instructed the jury:
{{a|letby|}}{{drop|I|n his summing}} up to the jury, Mr Justice Goss instructed the jury: <ref>{{pl|https://www.judiciary.uk/wp-content/uploads/2024/07/R-v-Letby-Final-Judgment-20240702.pdf|''R v Letby'' <nowiki>[</nowiki>2024<nowiki>]</nowiki> EWCA Crim 748}}. Emphasis added.</ref>
{{Quote|
{{Quote|
“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 [...].”<ref>{{pl|https://www.judiciary.uk/wp-content/uploads/2024/07/R-v-Letby-Final-Judgment-20240702.pdf|''R v Letby'' <nowiki>[</nowiki>2024<nowiki>]</nowiki> EWCA Crim 748}}.</ref>}}
“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 [...].” <br>
Later: <br>
“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''.”}}


As a principle of law, this is undoubtedly correct, and serves to resolve a probabilistic paradox which might otherwise arise.
{{drop|T|his 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.  


Say a defendant is charged with murder. There is unimpeachable evidence that the victim died as a result of violent blunt trauma to the head during a period in which only the defendant had contact with the victim and that took the shape of a heated argument culminating a threat to beat the victim senseless. Immediately afterward, the defendant was caught in possession of a hammer, a club and a lead pipe, all covered in the victim’s viscera. There was no doubt that the defendant murdered the victim but it was not clear with which implement.
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.


The law is rightly clear this does not matter. The defendant’s guilt does not depend on which of the implements she used to administer the fatal blow. The burden of proof is satisfied: the precise weapon is an extraneous detail.
{{quote|{{L1}}You must be sure that Ms. Letby, ''specifically'', deliberately did some harmful act to the babies that she realised was likely to kill them.<ref>The intent to kill (or, strictly speaking, recklessness as to the babies’ deaths) covers both murder charges (where the babies died) and attempt charges (where the babies did not).</ref><li>


But this is an unusual scenario. All other potential causes can be ruled out. This can only happen if the nature of the death was inconsistent with an innocent explanation: gunshot wounds are generally not consistent with an episode of hypoglycemia, so if there’s a gaping hole in the victim’s forehead, the possibility of a contemporaneous hypoglycemic episode can safely be ruled out as an operating cause of death or because the direct evidence positively supports the allegation that defendant did it. An unusually high insulin reading might be app or oddcoqnsistent with undiagnosed hypoglycemia, but not when the defendant was witnessed administering insulin to the victim intravenously ten minutes before she collapsed.
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.</ol>}}


In Ms Letby’s case, the equivalent scenario would be that, as well as evidence of a method of murder, there was independent evidence that Ms Letby was unequivocally responsible: that ''all reasonably plausible means of death involved Ms. Letby’s mw\alice''. Given what we know, an innocent explanation is not reasonably plausible.
This is all still quite abstract, so let’s take a hypothetical example.
====The tragic case of Bill and Nancy====
{{drop|I|magine a murder}} trial where there is unimpeachable evidence of the following:
{{quote|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. <br>
It culminated with Nancy shrieking, “No, Bill! Please don’t beat me! No!” <br>
Bill replied, “Sorry, Nancy, you asked for it.” <br>
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:


In Ms Letby’s case there are no gunshots wounds, and there is no evidence that she, specifically , administered insulin, injected air, overfed or assaulted any of the victims. Furthermore more in every collapse that led to a formal medical examination, the initial conclusion was natural causes.  We are not iwn a situation where “all plausible causes of death involved Ms LetThis would mean first ruling out as a reasonable explanation death by natural causes, medical misadventure short of recklessness by Ms Letby, or medical misadventure of any kind by anyone else.  
{{quote|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.}}


Only then can the jury be sure that Ms. Letby was responsible, regardless of what she actually did.
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?====
{{drop|M|s. 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:
 
{{quote| 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?====
{{drop|B|ut 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.<ref>See [[Lucy Letby: the insulin smoking gun]].</ref>
 
This is [[consistent with]] ''both'' factitious insulin — prima facie evidence of malice<ref>Though not by Ms. Letby specifically.</ref> ''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''.<ref>I am no endocrinologist, don’t want to be one, and wish no part of the fiercely tedious internet debates that rage between other people who are not endocrinologists about what is, or is not evidence of insulin poisoning. Please hold your letters.</ref>
 
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.
 
{{Quote|You must be sure that she deliberately did some harmful act.}}
====Implausible coincidence as compelling evidence====
{{drop|T|he 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 [[Lucy Letby: commonality|elsewhere]], the main — only, really — evidence the prosecution offered that implicating Ms. Letby personally was her [[Lucy Letby: commonality|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.<ref>As to which, see [[Lucy Letby: statistics]]</ref>


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.
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 judge later directed the jury:
The evidence was sketchy. I wonder, did this judge’s direction licence the jury to let its standard slip?
{{quote|
“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 of 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.”
}}
 


There are different scenarios:
{{sa}}
{{l2}}
{{gb|[[Lucy Letby]]}}
Death definitely has 1 of 3 causes, the defendant definitely was responsible for all 3, jury need not be sure which of the 3 it was.  ''Does not apply here'': no direct evidence, no finite set of causes. Some natural causes. <li>
{{ref}}
Death definitely has 1 of 3 causes, defendant definitely responsible for 2. Jury must be sure it was not the 3rd cause. Between the other 2, 1. above applies. ''Does not apply here'' for same reason as 1. <li>
Death definitely has 1 of 3 causes, defendant ''may'' have been responsible for all of them. If they do not know which it was, Jury must still be certain defendant was responsible for all three. Does not apply here: Same as 1 above. In Ms. Letby’s case, there were an unknown set of possible causes, some innocent, some malign, it was not clear she was even responsible for the malign ones. Since you can’t rule out unknown innocent causes, if they don’t know how Ms. Letby committed the acts, the jury can’t be “sure” she committed them.</ol>
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