Even Horace Rumpole could not have secured an acquittal for Lucy Letby. The more I look at this case, the more I suspect that there could never have been any other outcome than a conviction. I think a great cloud of emotion hung over that courtroom during the whole trial. I think that cloud spread outwards into the public mind before and during the long months of the trial. In my view, the actual prosecution of Ms Letby began on Thursday 5 July 2018, two days after she was arrested for the first time, and more than four years before she finally sat in the dock.
The prosecution knew throughout that they had no objective proof of their case, large or small
On that day, police officers dug up her tiny garden in a Chester suburb. Reporters were present to observe tools being carried through her modest semi for this excavation, and photographers were on hand to snap a constable in blue rubber gloves poking about in her gutters and drainpipes. Whatever were the police expecting to find? Did they find it? The suspicions expressed by digging up someone’s garden were reflected back into the courtroom. All those involved knew they were trying a giant, appalling crime. If the babies had been murdered and harmed (and I think this belief was near-universal), whoever was accused would have been convicted. If the crime is terrible enough, the fact of the accusation will be enough for far too many.
For there is still, in this country, a very strong belief that the police are generally right and that there is no smoke without fire. In a cynical and often quite callous society, there is also a strong passion against anyone who harms children in any way. Here we had a young woman, also a nurse, accused of being, secretly, the loathsome opposite of what she appeared to be. Far from being nurturing, she was a stealthy killer. Far from being an angel of mercy, she was a fiend out of hell. She was charged with a crime of boundless horror, the deliberate killing of newborns. There was little need to paint this in angry colours, for it is the crime of Herod himself. Can there be a viler misdeed under heaven? The accusation, once made, is likely to stick. The thirst for retribution is bound to grow as the process grinds on.
I am sure Nick Johnson KC, one of the prosecutors, is in private life a kind and courteous gentleman. He must believe in the presumption of innocence. He must understand how miserable it might be for a young woman accused of a terrible crime to undergo relentless, hostile private and public questioning for week after week. Yet he felt it was permissible to ask her if there was ‘any reason that you cry when you talk about yourself, but you don’t cry when talking about these dead and seriously injured children’? I thought, when I read about this exchange, that the trial, inflated by a great gush of emotion, had now ripped free of its rational moorings.
Once suspicion of heinous crime is alive in the mind, and a convincing culprit has been produced, anything can be made to seem to confirm it. Ms Letby took her notes home. Guilty! Ms Letby (her life halted and darkened forever by terrible suspicion) scribbled wild apparent confessions. Guilty! Ms Letby sent condolence notes to the parents of babies who died. Guilty! Ms Letby looked up people on Facebook. Guilty! Ms Letby was in the hospital when the babies died. Guilty!
None of these things actually proves anything. But the supposed confession, and the famous chart showing Lucy Letby was at the scene during all the deaths, must surely have stood out sharply amid hours of inconclusive medical detail.
The value of all this as evidence has now been called into serious question, in most cases by experts. The apparent forensic clincher, about insulin, turns out to have relied on the wrong tests. The whole debate on air embolism and its symptoms has only just begun. The Court of Appeal’s wooden, procedural view is that new evidence on this could have been brought up at the trial, so it’s too late now.
Is this justice? The Crown Prosecution Service has actually admitted that key door-swipe evidence, supposedly fixing the location of significant persons at important times, was wrong. I suspect that this astounding error, so far a tiny smudge on the radar screen, will grow and grow in importance. The prosecution knew throughout that they had no objective proof of their case, large or small. They kept insisting that the evidence was a totality and that this totality showed Ms Letby’s guilt. Mr Johnson, interestingly, said: ‘In this extraordinary case, context is everything.’ He was right. For there is no objective evidence that the babies who died were deliberately killed, no objective evidence that the babies which were damaged were deliberately harmed. And there is no piece of actual evidence which links Ms Letby directly to any evil action.
The defence did not face a prosecution of the usual kind. It faced something much more devastating – a hypothesis, vast, dark, wrathful and towering overhead. This hypothesis could only be accepted as a whole, or rejected as a whole. And there was so much of it that rejection of it would have taken a great deal of nerve – even if several rare moral giants had been in the jury room to defy the odds and stand up for reasonable doubt (majority verdicts can, disgracefully, override the lone voice).
The fact that the jury acquitted or failed to agree on some of the cases really doesn’t undermine this. They surely knew that convicting her of seven murders and seven attempted murders would put her in prison for life. Fighting such a prosecution with normal methods was like hacking with a cutlass at a fogbank. Alas, it is only now – while Lucy Letby sits in prison – that the emotional presuppositions of the prosecution can be exposed to an equivalent counter-hypothesis. This is equally fuelled by public feeling, but this time in favour of fairness.
Fighting such a prosecution with normal methods was like hacking with a cutlass at a fogbank
The burning thirst for such fairness, always slow to express itself, must now contend, in the media and probably in parliament, against the rival desire for retribution. If the conviction was just, those who believe her to be guilty surely have nothing to fear from a reopening of the case in which experts are heard on both sides. If it turns out that it was not just, then they should be pleased to have been spared the burden on their consciences of yet another wrongful conviction, another life irreparably wrecked.
I do not claim to know that Ms Letby is innocent. I strive to keep in my mind the possibility that she may be guilty, for how else can I listen properly to my opponents? I do not deride those who believe she is guilty. I grieve, as much as any stranger can, for the parents of the lost or damaged babies who are at the heart of the case. If there were a way of reopening the matter without distressing them, I would use it. I am just as sure that the police would rather not have dismayed those parents by investigating the allegations that their children had been murdered or deliberately injured. But they believed murder had been done and they had to act.
I think Wes Streeting, the Health Secretary, was wrong to suggest that campaigners asking for a new look at the case are crass and insensitive. We do not seek to attack her prison with pitchforks and liberate her. We seek to follow the law. There is surely enough evidence now that juries can be wrong and that the Court of Appeal can be too unwilling to reconsider cases. Why else did the government set up the Criminal Cases Review Commission? Would the Post Office scandal or the infected blood scandal have been resolved without public campaigning? Of course not. I, and many others, do not think the case against Ms Letby has been proven beyond reasonable doubt, and I think the courts should re-examine it as soon as possible. For, if by any chance she is innocent, the idea of her wearing out her days in prison for long decades to come, with no hope of release, is horrible almost beyond bearing.
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