The Spartacist trade unionists are organising a Free Lucy Letby protest outside the Thirlwall Inquiry next month. The Lucy Letby case grows and grows as a public scandal. The legal establishment has again been caught out as not able to handle criminal cases concerning difficult scientific issues of clinical medicine and statistics. This is an issue that has plagued the courts and been constantly dodged by governments.
This Parliamentary report spells out the dangers of celebrity type ‘experts’ who can mesmerise a jury, over against a better scientist who is unattractive and boring: Dewi Evans was certainly an extremely confident performer, the reverse of a cautious scholar who will present all sides and possibilities of a case, as Judge Peter Jackson warned Judge Goss to no avail. The report says: “If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe to proceed”. Since the defence did not put any of its instructed experts on the stand, Judge Goss could conclude that there was no opposing view against that of Evans and prosecution colleagues.
The Shoo Lee panel of experts from around the world with the highest possible credentials presented their findings on all the cases of which Lucy Letby was convicted, finding that no murders were committed and there are powerful alternative explanations for the deaths including sub-optimal care on the unit. Professor Neena Modi, a panel member, wrote a concise summary of the findings in the Guardian, including this paragraph:
The defence team inexplicably called no expert witnesses to give evidence, and although the judge was advised by Letby’s barrister that the prosecution lead witness was unreliable, it was nonetheless his opinion that formed the basis of his summing up. The jury were told that the babies were mostly healthy and well and that the deaths and deteriorations were unexpected. This is not the case; the babies were either overtly unwell, or at high risk of developing complications. Further, the significance of crucial information from the medical records and post-mortem examinations was not recognised. The jury therefore reached their verdict on the basis of information that was incomplete and misleading. This cannot be any basis for a fair trial.
Former Director of Public Prosecutions Lord Ken MacDonald told BBC’s World at One on the day of Shoo Lee’s bombshell presentation that the Criminal Cases Review Commission will “want to look at this very carefully” and that “if these 14 very high-level experts at the press conference this morning are right it will represent a comprehensive trashing of the prosecution case in the trials”. He also said that the Appeal Court was a frosty and hostile atmosphere for appellants and would be hard to convince even with this deconstruction of what the jury was told. The Criminal Cases Review Commission needs approaching first and needs to send the case to appeal, and the CCRC has a dire record in terms of slowness and helping innocent convicts along with all possible speed. And the CCRC has already stated that those campaigning for Letby only have a partial view of the facts, and also worryingly that the feelings of the grieving parents must be considered, not a normal test of truth but an instance of emotivism being used by the establishment.
The legal establishment finds itself in crisis as a result of this reckless prosecution lacking in any solid proof. Too many basic mistakes were made by the CPS, police, judges and much of the uncritical mainstream media. Abandoned were the principles of ‘presumption of innocence’, ‘beyond reasonable doubt’ and ‘burden of proof’. The NHS warned off nurses who wanted to testify for Letby. Attempts to warn the trial of the flawed statistics of the prosecution by two scientists were simply met with threats of contempt of court and prosecution. All the red warning lights were steamrollered. The resultant chaos and recrimination flows from incompetence all round, compounded by a very bad legal system for cases involving complex science.
At the time of writing, the Economist has penned a sobering editorial condemning the UK’s legal and health systems, finding them blind to what is going on and in need of radical improvement. The UK is very good at covering up miscarriages of justice and in this case it was only the New Yorker’s analysis that cut through – yet was promptly censored by the courts, while the vituperous attacks on Letby as evil and from hell poured forth freely.
The BMJ has also just published an analysis of where the case is, including a statement from Mark McDonald that the Shoo Lee panel has “demolished” the prosecution evidence. He adds “What the Lucy Letby case has done is expose how easy it is to get advice from experts who, according to the experts that I’ve instructed, simply did not know what they were talking about.” Dr Dewi Evans is also quoted in the BMJ as totally unrepentant on his diagnoses of the deaths: “I have not heard any criticism from any individual whose view I respect. And I have not heard any criticism from any organisation whose view I respect” – making himself the only legitimate scrutineer of his own diagnoses.
So what next? The establishment is once again likely to dig in and dig itself a deeper hole still. Even if the CCRC does quickly send the case back to appeal, the Court of Appeal is likely to stick to its procedural game of chess, minimise the devastating reasoning of the Shoo Lee panel, ignore the many unfairnesses of the two trials and keep Lucy Letby locked up despite the fact that the jury was given crucial misinformation and prevented from having exculpatory evidence. The second trial was a show trial, precondemned by the judge in his words to the jury. The appeal judges who turned down the application said that Evans’s evidence had “some worth” and the defence failed to put up expert witnesses of its own. So bad luck on Lucy, however unjust.
If the CCRC does send the case back to the Court of Appeal a retrial may begin, but it will surely be impossible to hold a fair retrial in view of the very deep and wide public discussion of a febrile and emotive nature. The reviling of Letby, started by the prearranged police arrest photo and amplified by the image of supposedly damning post-it notes during the trial, permitted to be publicised by the judge at the request of the BBC, has continued. But a growing body of opinion is now sure that either she is innocent or that she cannot possibly be considered guilty ‘beyond reasonable doubt’ – there is the deepest doubt now that the medical evidence of the prosecution has been demolished. The tide is turning fast in the mainstream media.
I fear there can be no fair retrial for Letby. The loathing whipped up by the populist and indeed respectable media rules out any jury which could possibly be fair and neutral. The situation now is so febrile as to constitute a culture war akin to France’s Dreyfus Affair. A Jewish officer in the French army was falsely accused and convicted of treason and sent to Devil’s Island in 1894. Then it emerged that another officer was the guilty party, but senior officers suppressed this information and Dreyfus remained in prison. Fresh false charges were brought against him – similar to Operation Hummingbird which is ongoing and inflaming yet more parental feelings. More charges against Letby are surely another device to shut down debate and criticism. It is time the CPS and police stopped digging their own graves.
The Dreyfus case enraged his supporters over against the antisemitic Catholic establishment. Emile Zola wrote his open letter ‘J’Accuse’ in 1898 condemning the unjust treatment of Dreyfus and highlighting legal malfeasance. The letter was printed on the front page of the newspaper L’Aurore, addressed to the President of France and accusing his Government of antisemitic chicanery in unlawfully imprisoning an innocent officer. The letter caused uproar. Zola was prosecuted for libel and fled to England. Dreyfus was finally pardoned and exonerated in 1906.
Can such exoneration happen now for Letby in the UK justice system as it stands? A European Court might agree that this case is a total scandal. Letby’s trial was unfair and she was never given any benefit of the very deep reasonable doubt surrounding her conviction. My guess is the establishment will fight every inch of the way to maintain her conviction. If the UK system cannot give her justice, will a European Court step in? Whatever happens next, it’s going to be messy.
Dr Timothy Bradshaw is a retired Lecturer in Theology at the University of Oxford.
Correction: An earlier version of this article incorrectly stated that “Former Director of Public Prosecutions Lord Ken MacDonald told BBC’s World at One the day after Shoo Lee’s bombshell presentation that this evidence ‘comprehensively trashes the prosecution case’.” In fact, he said this that this outcome depended on the 14 experts assembled by Mark McDonald being correct. The article also incorrectly said that: “The BMJ has also just published an analysis of where the case is, including another statement from Ken MacDonald that the Shoo Lee panel has ‘demolished’ the prosecution evidence. He adds ‘What the Lucy Letby case has done is expose how easy it is to get advice from experts who, according to the experts that I’ve instructed, simply did not know what they were talking about’.” In fact, these quotes came from Mark McDonald. We apologise for the errors.
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