Template:M intro letby Letby ineffable truth

Often spotted in the trenches of the keyboard war that rages over Ms. Letby’s conviction — though I sense it is blowing itself out: only a couple of Burmese Junglers still remain — are variations on this argument:

You were not at the trial. Unless you sat through ten months of evidence — unless you saw everything the jury saw, and looked into the whites of the defendant’s eyes — you cannot know the facts and cannot have a viable opinion on her innocence.

Advanced, often, by those who also were not at the trial and who, by their own logic, have no better idea of what went on, it really amounts to saying:

“I find the trial’s outcome agreeable and wish to entertain no further debate about it.”

Impermeability

Like all Anglo saxon criminal trials, it was conducted according to arcane rules: common law, statute, the, the rules of procedure, the law of evidence, and long established (if roundly criticised) principles governing expert evidence.

These institutions are meant to vouchsafe justice, and generally do, but are not infallible. Miscarriages of justice can and do happen. Even outrageous ones.

From this tremendous melée — the evidence-in-chief and cross-examination, each submission and each fork-tongued duel between barrister and witness — we expect that 12 random citizens formed between them an impression sure enough to condemn a defendant — but yet at the same time so mystic and ineffable that it cannot later be explained or rationalised. The verdict passes intractably into the record, a brute ontological fact, immune to mortal analysis.

To the question:

How on Earth did she get convicted?

Comes the answer:

You had to be there.

The Holy Spirit was upon these jurors. A guilty soul was justly condemned. Justice visited, did its thing and left, leaving no trace. None can now make sense of it. But still we must, all the same, quietly abide.

What the eye don’t see —

Acurious feature of this argument is how it depends on what we cannot see. There is a “truth”, but it is comprised of darkness. We cannot apprehend it, so we cannot challenge it.

But, explicitly, the criminal law does not work like this. Quite the opposite: it is, to a fault, rational. It is unflinchingly evidence-based: evidence is the be-all and end-all. There are strict rules governing what may be admitted. All of it may be interrogated. Everything that can influence an outcome must lie on the surface. If it cannot be made to float — if it comprises innuendo or prejudice, we must sponge it from the record.

In a criminal court, everything is open to audit. Anything that is not is disallowed. A concluded criminal case cannot defy comprehension.

Darkness is not allowed.

Lucy Letby’s trials ran for months. There was a colossal amount of data, that is true, and there is no doubt the jurors’ task was Herculean — beyond any reasonable expectations of twelve ordinary men and women. They should be commended for their work. But this is not to say that the material grounds for their decision cannot now be summarised, analysed or criticised.

Indeed: that is the very trial process: both prosecution and defence summarise their positions and present them to the jury at closing.

So we should ask the question now:

How on Earth did she get convicted?

There ought to be a manageable answer. At the time of the original trial, in the public’s mind, it was something like this:

She admitted it on some post-it notes.
She, and no other nurse, was present at every collapse.
There was conclusive evidence that exogenous insulin was deliberately administered to several victims.
There was conclusive evidence that several victims suffered air embolisms.

These are good grounds, if true, but they have been under sustained attack since Rachel Aviv’s, New Yorker investigation of 13 May 2024. Not one of these superficially comprehensible grounds for conviction holds water.

Now, journalists can overplay their hands. We are in the age of clickbait. One so minded could sift through the record, cherry-picking startling facts from their quotidian contexts to make a sensational story-line, blowing small discrepancies out of all proportion into a wholly misleading headline. This is hardly the New Yorker’s style, of course, but when the reputation of the British criminal justice system is in the, er, dock, it is right to pause for breath.

“Extraordinary claims require extraordinary evidence”.

In the wake of the New Yorker article, senior barristers duly came out to defend the process, pooh-poohing the misguided daubings of this American journalist not steeped like an old tea-bag in the lore of British criminal procedure.

Extraordinary evidence

But then the extraordinary evidence started rolling in. To their credit, the blustering KCs walked back their early essays. One, having at first declared himself satisfied with the conviction, openly pondered whether we had another “appalling vista” on our hands.

Statisticians picked up on the Texas sharpshooter aspects: The New Yorker was right: the spreadsheet was built upon the theory that Ms Letby was the perpetrator. Lawyers questioned the operation of the expert evidence rules: the weakness under cross-examination of the prosecution witness and the strange absence of any defence experts. Forensic scientists challenged the insulin evidence. Those few with expertise roundly debunked the expert evidence of air embolus.

A degree of frantic dissembling came back over the trenches — the case didn’t hinge on statistics or the evidence of a single expert, it was claimed — but these deflections came largely from journalists, not credentialised experts. No one engaged with the meat of the criticisms being aired against the convictions.

In matters of a great public debate, we are used to experts lining up on either side to make their case but, by and large, that’s not what happened here. The actual crown witnesses stood their ground, doggedly refusing to budge on any of their conclusions, even if their reasoning changed to suit the emerging fact pattern. But no new experts, who were not already involved, stepped forward. This was despite energetic efforts from contrarian news sources — notably Private Eye’ Dr Phil Hammond who repeatedly appealed for experts to corroborate the views presented in evidence to support what would, presumably, be an easy status quo. None did.

Now, since the NHS is the largest employer of medical expertise in the UK and the Crown Prosecution Service the largest user of professional expert evidence, we might put this down to professional courtesy, or even self-interest: a reluctance to bite the hand that feeds, so to speak, were it not for the fact that medical experts from around the planet were queueing up to challenge the CPS, free of charge.

I have been running an informal log: see the panel. A disconcertingly large number of relevant experts have expressed serious misgivings about the outcome of this trial. Those who support the verdict include two journalists with books to sell about the case, and one tobacco and alcohol lobbyist.

Are all these international experts labouring under a delusion? Have they been misled by nefarious interests into expressing formal, reputation-jeopardising public doubt — and in which case, whose, how and most importantly why? Who has anything to gain from meritlessly advancing the interests of a serial killer?

Again, the same question: why is it that no-one can explain what is so compelling about this verdict?

“You weren’t there, so you can’t understand” really will not do.

— the eye can’t critique

Justice has, formally, been done. Convictions have been entered; barring the clement machinations of the Criminal Cases Review Commission — don’t hold your breath — appeal pathways have exhausted.

But convicted criminals do not go into an oubliette. Once they are sent down, the justice system is not excused from explaining itself. After the verdict, any citizen who asks should get a straight explanation how the system is satisfied the criminal has done what the state alleges. We should have no truck with:

“well, it is complicated: you really needed to be there.”

A criminal conviction cannot be some opaque, unspeakable, sacred mystery. It is the exact opposite of that: criminal justice is scrupulously analytical. The prosecution must painstakingly prove out every point in its chain of logic. It must all be disclosed in advance, laid out before the court, and opened to the defence, for its unlimited scrutiny.

It is often said that the burden of proof inverts upon conviction: the Crown’s burden is satisfied. It no longer needs to prove anything. Now the defence must satisfy a burden. To overturn a conviction, one must shift heaven and earth.

It is not just a case of making a better argument: there are procedural conventions requiring the defence to introduce new evidence that was not reasonably available at trial that shine a new light. It will not do to plead that you didn’t introduce evidence: you must show that you couldn’t have. In this way a defendant is at the mercy of her counsel’s competence and strategy, but there are policy reasons for this. There must be certainty. A vital aspect of criminal justice is finality.

There is residual discretion at the fringes here in cases of flagrant injustice but the Court of Appeal is notoriously reluctant to use it: it is a “vista” too appalling to countenance. Senior Barristers recoil in sanctimonious horror should one suggest the British justice could fail that badly. But we should not let our learned friends’ disdain obscure the fact that repeatedly, in recent times, the British justice system has failed this badly.

All the same, the defence must make a compelling case. In contrast to the prosecution’s wan allusion to the bygone mysteries of trial, the arguments for the defence are specific.

Defence arguments are clear

In sharp contrast to those who would defend the convictions, Ms. Letby’s defence team has been garrulous. There have been interminable press conferences. Their arguments — many of them made “in the alternative”, as lawyers like to do, affording themselves multiple, sometimes contradictory, shots at the same target — have been published in tremendous detail. The defence has invited detailed rebuttal — some have, rather feebly, tried to provide it — and no small amount of professional criticism, not for being somehow covert, but for being too forthright. As far as senior members of the bar are concerned, rattling cages in this way is just not cricket.

The same goes for all the “strange band of misfits and ghouls” who have questioned the safety of the conviction. Their arguments are by nature public, detailed — way too detailed in many cases — specific, articulated, and welcoming of good-faith challenge.

It has not had much. The credible challenges that have come back have been either formal in nature— “the rules have been followed, she had her chance, alea iacta est” — or somehow mystical — there are things about this process that resist intellectual inquiry and must not be disturbed.

This is especially perplexing since it is generally the prosecution who must makes the intellectual running. The burden of proof is such that it is the crown, not the defence, that should be best at spelling out the ingredients of its case. That the burden reverses on conviction should not alter this fact

For if the evidence was so compelling, and the crown’s case so immaculate, you would think someone would be able to articulate it. There are any number of erudite criticisms of the law, the application of evidence, the use of statistics, of the crown witnesses’ speculative diagnoses, available in the public domain. Bar one cantankerous lobbyist for the alcohol and tobacco industries — whose professional calling is to champion dubious causes —— no one has managed to mount any explanation of the merits of the crown’s case.

If you weren’t at the trial you can’t know: “context is everything”, and guilt with events through a combination of interlocking facts. This is a kind of “emergence” argument. It is routinely run, ironically enough, by people who also were not at the trial.

If this is right then the outcome of no trial can ever be gainsaid, appeals should also be forbidden, and the curial process should be sanctified as some ineffable, inexplicable conveyance of mystical verities by means of holy procedure, to be hereafter obeyed.

That is not how things work. Trials are reported, there are sequences, there are critical phases, points of sharp drama and afternoons of procedural guff.