Could Lucy Letby, the UK’s most notorious child-murderer, be innocent? The question has rumbled on ever since her convictions for the killing or attempted killing of 14 babies while a neo-natal nurse at Chester Hospital. It is a question that was given more substance this week by a panel of specialists, whose evidence forms the basis of an application from her lawyers to the Criminal Cases Review Commission (CCRC), which could allow an appeal.
The matter of Letby’s guilt or innocence is not the only question raised by this case, however. Another, which has so far lurked mostly in the background, concerns nothing less than the quality of the English judicial process. Should an appeal succeed, this question would spring into the foreground. But the extent of unease that already surrounds this case means that it should be addressed anyway, even if there is no appeal.
Let me put my own cards on the table. I have no view on, or sense of, Letby’s innocence or guilt. I was not in the courtroom; I followed the case through media reports. As an ingrained sceptic and questioner of conventional wisdom, however, I am wary of the cast-iron certainties that marked this case, and the circumstantial nature of the evidence. It seemed to me that a consensus had been formed early on about Letby and her guilt that would have been very difficult for any trial to dislodge.
This, in turn, highlights what seem to me some real drawbacks of the English judicial process, especially in trials such as Letby’s which arouse high public emotions, and rely on highly technical evidence. The combination may not serve the interests of justice.
I was called for jury service around 20 ago and emerged a firm supporter of a system that requires a random selection of people to reach a verdict based on the evidence they have heard. But specialist evidence presents problems, especially if the whole case hangs on its interpretation.
The difficulty is more often mentioned in relation to fraud trials, but it could equally have applied in the trials of sub-postmasters which involved evidence about the workings of the Horizon computer system. This is not to say that a jury in such cases should necessarily be replaced – as has sometimes been suggested – by a specialist panel. The point is rather to recognise that a jury of lay-people has no way of judging the validity of the expert evidence that is placed before them; they depend entirely on the acquired expertise, or natural curiosity, of the legal counsel on either side.
The difficulties are only compounded by the adversarial nature of the English judicial system, where lawyers compete to convince the jury, not only with the evidence at their disposal, but with their rhetorical and persuasive skills. It seems to me that the inquisitorial system that mostly applies on the Continent is better suited – in fact much better suited – to examining and assessing highly technical evidence.
Specialist evidence presents problems, especially if the whole case hangs on its interpretation
The emotional aspect cannot be excluded either. The Letby case – a nurse charged with killing very sick infants in her care – is at the extreme end of the spectrum here, with bereaved parents and colleagues of the accused nurse being called on to testify or watching proceedings from the public gallery. But it is precisely in such cases where, it could be argued, emotions need to be kept at bay, to allow the evidence to be scrutinised as scientifically and dispassionately as possible.
The trend in English courts over the years, however, has been towards admitting ever more emotion into the courtroom, whether it is testimony at the start of public inquiries – from bereaved relatives at the Covid inquiry, for instance – or the victim impact statements that have been permitted in courts starting in 2001. It is understandable that those affected by what has happened want to stress the heinous nature of the crime. But how much of this is conducive to the passage of justice? The parents of the babies who died at the Countess of Chester hospital deserve endless sympathy; but they cannot be allowed to stand as judge and jury.
Many of these points – about technical evidence, the adversarial system and a background of high emotions – can be found to some degree in past cases where there have been proven miscarriages of justice. The notorious case of the Guildford Four, wrongly convicted of the 1974 Guildford pub bombing, took place against a background of high public alarm over IRA attacks on the mainland. The more recent cases against postmasters and postmistresses required evidence about the functioning of specialist computer software. The charges also related to defrauding the Post Office – then an institution held in some public affection. In the upper echelons of the Post Office, there seemed to be a view that fraud was more likely than not.
In the event that the convictions in the Letby case are found to be unsafe at appeal, the argument for reforming some aspects of the judicial system – up to and including replacing the adversarial with an inquisitorial system for certain cases – would surely be made.
At a time when trust in the justice system is not what it was, there must also be a case for more transparency. Much is made in the UK of the principle that justice must not only be done, but seen to be done. In at least one respect, it is not nearly as open as it could be. If, as a reporter or interested member of the public you want to look for yourself at the records of a trial, you may request a transcript – for which you will be required to pay the costs of transcription. For a case I was interested in, I was quoted £60,000. Sir David Davis said he had been quoted £100,000 for a transcript of the Letby trial. Yet there must be recordings of proceedings, which must in this day and age be digitised. Hansard publishes Parliamentary transcripts; should there not be equivalent court records, with at least a recording available free of charge – a 21st century public gallery?
If more people were able to hear what the jury heard in the trial of Lucy Letby – which has become ever more contentious as the months have passed than it ever was while the trial was in progress, then that could also help to foster confidence in the process. Or at least it could make for a more informed public debate about what is emerging as one of the most contentious cases of recent times.
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