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 within a time window in which the defendant was the only person to be in contact with the victim, and there is eyewitness evidence of a heated argument after which the defendant announced he was going to murder the victim. Immediately afterward, the defendant is arrested in possession of a hammer, a club and a lead pipe, all of which are covered in the victim’s blood. There no doubt that the defendant was responsible for the murder: there is evidence that the defendant used each weapon, but it is not clear with which she administered the deadly blow.

The jury is not obliged to acquit the defendant because they do not know which weapon she used, if they are sure she used a weapon. The inference that the defendant murdered the victim does not depend on the evidence of a specific weapon. The burden of proof is already satisfied: the identity of the weapon is an extraneous detail.

Ms Letby’s case, the equivalent scenario would be that, independent of evidence of a method of murder, there existed independent evidence that Ms Letby was unequivocally responsible: that all reasonably plausible means of death involved Ms. Letby’s malice.

This 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.