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 [...].”

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

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.

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.

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.

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.

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.

Only then can the jury be sure that Ms. Letby was responsible, regardless of what she actually did.

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:

“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:

1. 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.
2. 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.
3. 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.