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

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“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>}}

As a principle of law, this is undoubtedly correct. It serves to resolve a probabilistic paradox which might otherwise arise where there is no doubt that the defendant murdered the victim, but it is just not clear precisely how ~~she did it~~. The ~~jury’s belief in the defendant’s guilt~~ is ~~not derived from~~ the method of murder. ~~The burden~~ of ~~proof~~ is ~~satisfied with other evidence: a reliable confession, of a reasonable inference that no other cause of death was likely~~.

As a principle of law, this is undoubtedly correct. It serves to resolve a probabilistic paradox which might otherwise arise where there is no doubt that the defendant murdered the victim, but it is just not clear precisely how. The burden of proof is discharged without knowing the exact method of murder.

But this scenario — where all innocent causes of death can be ruled out — is unusual.

~~But this scenario — where all other potential causes~~ of ~~death~~ can be ~~ruled~~ out ~~— is unusual~~. ~~There are two ways it might arise:~~

We focus on the first part of the test but it is the second that bites. ''How'' can you be sure that the defendant is a murderer if you don’t know how she did it? Only if there is evidence so directly implicating the defendant as to rule out anyone else.

~~Firstly,~~ the ~~victim’s ''manner~~ of ~~dying'' might exclude an innocent explanation: blunt trauma~~ is ~~not consistent with, say, a fatal episode~~ of ~~hypoglycaemia~~. If the ~~victim’s head has been stoved in~~, ~~we need~~ not ~~waste time wondering whether he might have suffered~~ a ~~hypoglycaemic episode~~.

It is hard to frame hypotheticals here because usually the sort of evidence that makes you certain a defendant is guilty is direct eye witness evidence of them committing the crime. If there is unequivocal evidence that the defendant was murdered — stab wounds, gun shots and so on — it is usually not difficult to infer a detailed means of death.

Secondly, ~~independent~~ direct evidence might positively implicate the defendant. Here the defendant’s skull is intact, but tests return an unusually high insulin reading. This might be [[consistent with]] undiagnosed hypoglycaemia, but if the defendant was reliably witnessed administering insulin ten minutes before the victim collapsed, we can rule out hypoglycaemia as an operating cause of the collapse.

There are unusual cases where it might have been a kick or a punch, but it definitely was the defendant — but these are rare, and the authorities really stand only to head off cute arguments from enterprising defence lawyers who are otherwise out of ideas..

This case is different. Here there is real doubt as to how the victims died. Distinction between similar methods, there is no information about core of death at all guarantee the cause of death was murder at all..

A direction to the jury that you don't need to be sure how the defendant did it as long as you are sure that they did it is dangerous. It may be construed as permission to lower the analytical standard. How are you supposed to be sure that the defendant did it if you don't know how they did it? This is particularly acute where speculative evidence has been introduced but badged as expert scientific evidence

Here

Secondly, direct evidence might positively implicate the defendant. Here the defendant’s skull is intact, but tests return an unusually high insulin reading. This might be [[consistent with]] undiagnosed hypoglycaemia, but if the defendant was reliably witnessed administering insulin ten minutes before the victim collapsed, we can rule out hypoglycaemia as an operating cause of the collapse.

In the first of these cases we might be sure that it is murder even if we don’t know the precise method; in the second case we can only be sure it is murder because we know the precise method. This is the evidence that excludes non-malicious alternative explanations.

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“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:~~

~~{{l2}}~~

There are a finite number of potential causes, the defendant was responsible for all of them, jury need not be sure which was the operating cause. ''Does not apply here'': no direct evidence, no finite set of causes. Some natural causes. <li>

There are a finite number of potential causes, defendant definitely responsible for a defined subset of them. Jury must be sure it was a cause from that subset. Between the remainder, 1. above applies. ''Does not apply here'' for same reason as 1. <li>

There are a finite number of potential 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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 “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>}}
-As a principle of law, this is undoubtedly correct. It serves to resolve a probabilistic paradox which might otherwise arise where there is no doubt that the defendant murdered the victim, but it is just not clear precisely how she did it. The jury’s belief in the defendant’s guilt is not derived from the method of murder. The burden of proof is satisfied with other evidence: a reliable confession, of a reasonable inference that no other cause of death was likely.
+As a principle of law, this is undoubtedly correct. It serves to resolve a probabilistic paradox which might otherwise arise where there is no doubt that the defendant murdered the victim, but it is just not clear precisely how. The burden of proof is discharged without knowing the exact method of murder.
+But this scenario — where all innocent causes of death can be ruled out — is unusual.
-But this scenario — where all other potential causes of death can be ruled out — is unusual. There are two ways it might arise:
+We focus on the first part of the test but it is the second that bites. ''How'' can you be sure that the defendant is a murderer if you don’t know how she did it? Only if there is evidence so directly implicating the defendant as to rule out anyone else.
-Firstly, the victim’s ''manner of dying'' might exclude an innocent explanation: blunt trauma is not consistent with, say, a fatal episode of hypoglycaemia. If the victim’s head has been stoved in, we need not waste time wondering whether he might have suffered a hypoglycaemic episode.
+It is hard to frame hypotheticals here because usually the sort of evidence that makes you certain a defendant is guilty is direct eye witness evidence of them committing the crime. If there is unequivocal evidence that the defendant was murdered — stab wounds, gun shots and so on — it is usually not difficult to infer a detailed means of death.
-Secondly, independent direct evidence might positively implicate the defendant. Here the defendant’s skull is intact, but tests return an unusually high insulin reading. This might be [[consistent with]] undiagnosed hypoglycaemia, but if the defendant was reliably witnessed administering insulin ten minutes before the victim collapsed, we can rule out hypoglycaemia as an operating cause of the collapse.
+There are unusual cases where it might have been a kick or a punch, but it definitely was the defendant — but these are rare, and the authorities really stand only to head off cute arguments from enterprising defence lawyers who are otherwise out of ideas..
+This case is different. Here there is real doubt as to how the victims died. Distinction between similar methods, there is no information about core of death at all guarantee the cause of death was murder at all..
+A direction to the jury that you don't need to be sure how the defendant did it as long as you are sure that they did it is dangerous. It may be construed as permission to lower the analytical standard. How are you supposed to be sure that the defendant did it if you don't know how they did it?  This is particularly acute where speculative evidence has been introduced but badged as expert scientific evidence
+Here
+Secondly, direct evidence might positively implicate the defendant. Here the defendant’s skull is intact, but tests return an unusually high insulin reading. This might be [[consistent with]] undiagnosed hypoglycaemia, but if the defendant was reliably witnessed administering insulin ten minutes before the victim collapsed, we can rule out hypoglycaemia as an operating cause of the collapse.
 In the first of these cases we might be sure that it is murder even if we don’t know the precise method; in the second case we can only be sure it is murder because we know the precise method. This is the evidence that excludes non-malicious alternative explanations.
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 “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:
-{{l2}}
-There are a finite number of potential causes, the defendant was responsible for all of them, jury need not be sure which was the operating cause.  ''Does not apply here'': no direct evidence, no finite set of causes. Some natural causes. <li>
-There are a finite number of potential causes, defendant definitely responsible for a defined subset of them. Jury must be sure it was a cause from that subset. Between the remainder, 1. above applies. ''Does not apply here'' for same reason as 1. <li>
-There are a finite number of potential 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>