Lucy Letby has just been denied an appeal for her second trial on the attempted murder of Baby K. Appeal judges have now denied Letby appeal after she claimed that a fair second trial was impossible after her monstering by the media. This was somewhat unrealistically brushed aside by the appeal judges, though they added: “Some of the public comment has called into question whether Letby ought to have been convicted in 2023. Whether there are issues arising from the first trial… is not for us to say. That would be speculative.” David Davis MP has said he will raise the matter in Parliament and will also be seeking for the case to be referred to the Criminal Cases Review Commission. My guess is Letby will need to go to the European Court of Human Rights to get justice as the British system cannot cope with the case and is closing ranks against a quest for justice and truth.
Interestingly, it was Judge Goss who ruled in that trial that the jury could consider the conviction evidence from her first trial. Judge Goss, you will recall in the Chris Kaba trial ruled otherwise, decreeing that Kaba’s criminal record was not to be disclosed to the jury since supposedly irrelevant.
How has the British criminal legal system got into such a grotesque mess over the trials and appeal denials of Lucy Letby? This is now a global scandal and scientists from other common law jurisdictions are shocked – see for example this latest American scientist’s condemnation of the convictions. The latest insulin evidence has been ignored, allowing discredited immunoassay testing by the prosecution.
The adversarial trial system has been shown inadequate to deal with complex, and indeed developing, scientific data in Lucy Letby’s trials. Procedure has triumphed over the serious search for the truth. Yet there is also the question as to whether existing legal procedures were followed over testing expert witnesses.
We need to try to understand why and how this tangled case grew its hypothesis and used it in inquisitorial fashion. The case raises the issue of science in court and the law’s attitude to it. C.P. Snow’s famous analysis of the “two cultures”, science and liberal arts, seems to provide a useful background to help understand the controversy now growing over the conviction. Snow distinguished the scientific culture from the culture of those educated in, and at home in, the liberal arts – and by “science” he meant hard science, empirically based and testable, not soft sciences. The legal officials handling the case were of the non-scientific culture. The prosecution and defence barristers, the judge, and later judges considering and rejecting grounds for appeal, were non-scientists. Likewise the jury. They were led to believe that the newborns in question were healthy babies, whereas they were just surviving, in intensive care, on the edge, in a unit beset with serious problems and threats to the neonates. The jury may have been led to believe that the nursing staff were trained in medical science, whereas their training has very little of that.
It is very unlikely that Letby’s nursing training equipped her with enough knowledge of insulin to be able to answer the prosecutor’s leading question, that she agreed the higher level “must have been caused” by exogenous human insertion and could not have occurred naturally – which we now know is the case.
Is the paucity of scientific expertise and interest a factor in this controversial case? The reality, of course, is that certain ‘experts’ are relied on in court by everybody else who lacks such technical expertise. Here surely lies the root of how this case has been such a disaster. Even a lay person reading this trial notes that the key evidence presented by the prosecution about skin discolouration did not involve any photography taken at the time, surely essential to clinical evaluation: the science in the unit was hardly rigorous it seems and weakens the allegations deriving from ill-defined discolouration. This itself weakens the credibility of the prosecution scientific case, certainly “beyond reasonable doubt”. In fact all the confirmation bias incidents in this case are soaked in reasonable doubt: the case proceeded on the assumption that this nurse, earmarked by hostile senior doctors working with the police, “must have been” an assassin, despite the complete lack of evidence.
I am asking whether this divide between the two cultures played out in the legal dramatis personae of the trials and appeal requests, failing to understand and take seriously statistical and medical argumentation, and more than that to fiercely reject sincere attempts to get good scientific evidence into the trial.
Dr. Evans, the prosecution lead expert witness, conducted the investigation for the police in targeting Letby by his use of nursing rosters for the unit. This formed the basis of his hypothesis to account for the supposed difficulty. The police then set about gathering interpretative straw to make the nest of her guilt from these straws: classic confirmation bias. First identify your suspect, then hunt around for confirmatory evidence: senior doctors of the neonatal unit identified the suspect to the police, who just went with their suspect and worked to convict her. This offends basic statistical method, and from the very start of the proceedings against Letby the mode of use of nursing rosters in the neonatal unit at the Countess of Chester Hospital was called into question by high level statistical experts. The Royal Society of Statisticians prepared a report on the danger of misuse of figures in such trials and sent it to the authorities so that they would be apprised of the problem. This report was ignored totally.
Likewise, two scientists also sent in letters at the start of the first trial to the judge and barristers of each side giving information on the statistical and clinical aspects of the case. These communications were given to the police and the scientists were then threatened with contempt of court and arrest for their contumacious conduct in trying get significant data into the trial, foolishly assuming that the search for the truth was desired by the court. The defence lawyers, astonishingly, also rejected these two analyses helpful to its defence, as well as making some crucial damaging concessions to the prosecution, notably on the issue of insulin poisoning. The adversarial trial system completely failed in putting game-playing ahead of finding out the truth. The court attacked the scientific evidence and threatened the academics. C.P. Snow would have a field day.
But this problem of expertise in cases had been recognised. Dr. Phil Hammond in his MD Private Eye report on the case gives the history and rationale of expert witnesses in criminal trials and summarises the 2011 Law Commission report, ‘Expert Evidence in Criminal Proceedings in England and Wales‘. Among the problems, it identified “too much expert opinion evidence is admitted without adequate scrutiny because no clear test is being applied to determine whether the evidence is sufficiently reliable to be admitted”. Secondly, “in the absence of a clear legal test to ensure the reliability of expert evidence, advocates do not always cross-examine experts effectively to reveal potential flaws in the experts’ methodology, data and reasoning”. Finally, “juries may therefore be reaching conclusions on the basis of unreliable evidence. This conclusion is confirmed by a number of miscarriages of justice in recent years”. The report recommended:
- A new admissibility test for expert evidence;
- That expert opinion evidence would not be admitted unless it was adjudged to be sufficiently reliable;
- New guidance for judges for applying the test, setting out the key reasons why an expert’s opinion might be unreliable;
- A proper framework in criminal proceedings for screening expert evidence at the admissibility stage.
The Ministry of Justice responded on November 21st 2013, indicating it did not intend to act on the majority of the recommendations. This was clearly a major mistake by the Government of the day, on grounds of cost – the Letby case has been fraught with controversial science and in great need of all the recommendations of the Law Commission.
But later Lord Chief Justice Thomas (as explained by Joshua Rozenberg in his Guardian article ‘Are Juries being blinded by science?‘) said that by adjusting criminal procedure rules, these recommendations can be introduced by the Common Law. Lord Thomas lamented the closure of the Government’s Forensic Science Service in 2012, and worried about private companies touting for the trade – which might remind us of Dewi Evans, who runs a company Dewi Evans Paediatric Consulting Limited, company number 07341254, which has banked considerable sums over the last couple of years. The Chief Justice, said Rozenberg, “appeared concerned that juries were being blinded by science. Jurors should not be expected to understand and interpret complex scientific concepts, he said. Instead, their task should be to decide between opposing scientific views”.
In the Letby case there were no two scientific views in the witness box to evaluate. Dr. Hall, who was recruited for the defence, was never called but sat through the trial convinced it was unfair, as he wrote to the BMJ. The appeal judges who turned down the second application for an appeal said that counter-embolism evidence was not admissible as it might have been presented in the trial, so not new, so Letby should rot in prison. All rather medieval, the judiciary closes ranks.
If the Common Law procedures have, as Lord Thomas hoped, been adjusted to ensure that the Law Commission recommendations are adhered to, then the Letby case looks like an enormous breach. Dewi Evans had arguably been discredited as a reliable medical expert by Lord Justice Jackson, and no alternative expert was put in the witness box, as per the Law Commission recommendations. Should Judge Goss have pointed this out ? There was no screening of Evans at the admissibility stage. He has already admitted he was wrong over his diagnosis of Baby C as having had air injected into his stomach by the alleged assassin Letby. Judge Goss kept Evans’s testimonies going on the alleged murders and told the jury to make up their own minds about its reliability, notwithstanding the lack of a defence expert witness being put up to give a scientific second opinion. The Law Commission’s recommendations on expert witnesses are being vindicated as the prosecution’s assassin hypothesis falls away with the powerful critiques of Evans’s testimony and his subsequent changes of mind. Was Judge Goss unaware of Lord Thomas’s statement about the need for expert witnesses to be assessed and for each side to put up its expert?
Were the appeal judges aware of Lord Thomas’s statement of Common Law procedures to filter out inferior and biased expert advice? They treated Evans’s mistake on the Baby C X-ray, and sudden switching of murder method when Letby was not present as if a minor issue, and one not affecting his general reliability. He was said to have other supporting evidence to rely on – by which they seem to have meant a hypothesis, not any witnessed actus reus or mens rea. Appeal judges say that if the evidence cited by the appellant was available at the time of the trial, it cannot be used for appeal – why not, if that evidence contains the truth?
Another new discovery, by the Guardian, is that the police investigation was indeed aware of the need to double check the statistical validity of Evans’s use of rosters, and had lined up Professor Jane Hutton of Warwick University to go over this evidence. Her contract was drawn up. As a top level statistician she had grave doubts about the police’s evidence as the basis for prosecution. She said of the shift chart and other elements of the case: “It’s a large pile of crockery, much of which is broken. Such a pile does not hold water, however big it is.” She told the Cheshire Police that no statistician would begin an investigation by identifying an individual and hunting for evidence against her, but by looking at all the evidence and seeing where it points. Here there were indeed more convincing explanations for the deaths and collapses than assassination. Cheshire Police was about to go with Hutton’s expert advice, but the CPS stopped it and instructed it to pursue Letby. The same expert statistical advice had been sent to the court at the start of the trial by Richard Gill, who was immediately threatened with arrest for contempt of court. The court deliberately turned its face away from seeking after the truth. The CPS bear an immense responsibility for directing the investigation in flagrant contradiction to the strong advice of genuine experts. Prosecutors should not direct the police or other investigators.
The Guardian quotes Peter Green, Emeritus Professor of Statistics at the University of Bristol, who said: “This is an extraordinary revelation. Statisticians have criticised the staff chart used in the trial of Letby as a classic misuse of statistics. Now we know that the prosecution decided not to proceed with a proper analysis by Prof Hutton, a distinguished statistician who has decades of extremely relevant experience.” One wonders whether the right people are in the dock.
Goss decided it was ‘for the jury “to determine, as with any witness, his [Dr. Evans’s] reliability, having regard to all the evidence in the case”. Does this decision observe the Criminal Procedure Rules cited above, rules to protect juries from misleading experts, the problem raised by the Law Commission and Lord Chief Justice Thomas?
Judge Andrew Goymer in 2014 set out the duties of the expert witness in an authoritative lecture. Judge Goymer said that the science expert must be of the highest quality.
A competent scientist approaches the task with an open mind and ensures that every line of enquiry is considered and every investigation thoroughly carried out. Integrity demands that the scientist does not overstate his or her conclusions and is ready to concede the limitations and drawbacks. All scientists have a heavy responsibility because their conclusions can make the difference between justice being done and some appalling miscarriage of it.
Evans’s dual role as helping the police investigation and as a ‘neutral’ expert witness in the court is an obvious contradiction offending Lord Thomas’s and Judge Goymer’s rules, a clear conflict of interests.
Goss leaving to the jury to believe the expert as if just any witness seems to have missed this key point. Judge Goss on day two of his summing up to the jury said that Letby had not been on duty when she was accused of harming baby C: “When I was reminding you of the evidence of Dr. Marnerides and Professor [sic] Evans relating to the massive gaseous dilatation of the stomach and bowel loops that. Dr Marnerides relied on, they related to X-rays and clinical notes on June 12th and not June 13th”. This surely should have quashed the case for her murdering baby C: Letby was not even there. But no, he just continued as if a clerical error. The words “beyond reasonable doubt” should have been pressed on the jury, then and often. The prosecuting expert was changing his tune and the judge was happy with that.
The hypothesis grows weaker by the day and in the absence of serious evidence, forensic or directly witnessed wrongdoing, Letby’s guilt really is just a theory, unjustified, and possibly rooted in professional hostility. Without a motive, without evidence, why is she denied an appeal? No actus reus, no mens rea. By way of a piece of advice to the Government: reverse the closure of the Forensic Science Service, shut down in 2012. It is clearly very much needed to avert future disasters such as the Letby case and low quality ‘expert’ witnesses. Had it remained open it might have saved the million pound cost, and served justice far better.
This case opens up the dysfunction of the NHS, it treads on holy ground, and in quasi-religious fashion cannot be allowed to find scapegoat Letby innocent with the actual killer on the wards being under-staffing, overstretched medics, infection, cots being too close, and so on. Which killer is the more likely, a dysfunctional NHS hospital unit caring for tiny neonates struggling for life, or a human assassin, with no motive ever established, and no criminal actions ever witnessed?
At the time of writing, Dr. Phil Hammond has just published his latest assessment (number six) in his MD column on Letby in Private Eye. He goes over Dewi Evans’s diagnoses and changes of mind, ironically amazed at how brilliant these are, having been completely missed by all the top neonatal experts MD has contacted. Evans confirms this effortless superiority in a Sun interview titled ‘Letby Debunked – I’m the expert who helped nail Lucy Letby… here’s why poundshop Poirots’ theories are all wrong and she did kill seven babies’. This hubris confirms surely the suspicion that Evans should never have been an expert witness, he just does not see both sides of an issue, he was out to “nail Lucy Letby”, not observe the conditions for expert witnesses in court.
Dr. Timothy Bradshaw is a retired Lecturer in Theology at the University of Oxford.
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