The Jolly Contrarian on Crime and Punishment

Before you accuse me—

Now is the worrying time—Woe! Woe! Behold!Armageddon and the four horsemen of the apocalypse:Famine, Pestilence, Death—And the other one. … Sometimes, you know, God can be so unimaginative. The Young Ones, Interesting [https://www.bbc.co.uk/iplayer/episode/p00bfqpk/the-young-ones-series-1-5-interesting] (1982) There has recently been a bit of conflab amongst those challenging Lucy Letby’s convictions about the motivations of the “gang of four”: did the COCH paediatricians really believe she was harming babies? Opinion is split. A hard core is convinced the consultants had ulterior motives from an early stage. The more liberal fringes feel it is a bit more complicated. Some think it is beside the point. I’m in that camp. Exchanges have been testy. Even petulant. This is no doubt disappointing for those who value civil debate and want to keep the innocence campaign on the same hymn sheet, but fun for those of us who find a bit of verbal argy-bargy bracing. And it tends to rebut the idea there is some vast Letbyist conspiracy so, I’m all for it. The point at issue is how to think about the behaviour of Ms. Letby’s principle accusers — the so-called “gang of four” CoCH consultants. Were they misguided or malicious? This not worth even talking about unless it transpires she was not guilty so — apologies in advance to my many pitchforker readers — we will, for a moment, take it as a given that Ms. Letby did not deliberately harm any infants. This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. It’s complicated There is a continuum of possible “blame points”. At one end, the consultants were dispassionate and logical at all times but nevertheless somehow reached the wrong conclusion, and the system then swamped them. At the other, from the outset they conspired in a cynical attempt to have Ms. Letby imprisoned knowing full well she did nothing wrong. There are, naturally, a host of positions in between. As one poster put it, “it’s complicated”. This debate has an odd resonance with the public debate about Ms. Letby herself. Both extremes are highly improbable. They leave untouched a wide range of more probable, but less satisfactory explanations. We like our narratives to explain the world to us. We do not find useful ones that say, “Well, we just don’t know”. We prefer conclusions, however unlikely they may be. The situation of risk was an “unexpected cluster of medical collapses and deaths in the CoCH neonatal unit”. Since the unit is there to prevent negative health outcomes, on its face it has failed. You would expect senior professionals in that unit to be concerned, and to look for causes for its failure. An obvious one is intentional human agency. Another is unintended human failure. That may implicate the consultants themselves. Being human, they were subconsciously motivated to prefer an explanations that served their interests as well as the hospital’s. In looking for explanations, the consultants were inherently conflicted. “An undetected serial killer nurse attacked these children” was a better explanation than “these children collapsed as a result of shortcomings in the care we were responsible for providing” because it laid the blame at someone else’s door. Especially once they had identified and escalated their concerns to management. But this does not mean they were malicious. All humans act self-interestedly all the time. It is our default operating mode. We cannot attribute malice without a lot more information — information we are, at this remove, highly unlikely to get. It doesn’t matter But in any case, it doesn’t matter. What matters is that the consultants were wrong — again, assuming they were wrong — not why. If the goal is to overturn the miscarriage of justice, focusing on how blameworthy the consultants were is a distraction. For if, in forming their honest opinions that Ms. Letby was responsible, the consultants acted with clear-eyed surgical precision and the equanimity of modern saints, yet were still demonstrably wrong, Ms. Letby would be no less deserving of acquittal. If they acted as a scheming cabal she would be no more deserving. Focusing on the consultants’ motives is to make a category error. It is not the consultant’s motives and actions that determine whether Ms. Letby should be in prison, but her own. What difference does it make how malicious the consultants were? Isn’t there a ball that needs to be played here? What does it achieve to take out the man? It’s a nice explanation To be sure, “wanton malice by consultants” is a convenient, easy, satisfying explanation. It offers a clean, resolved, retributional answer. There is a heroine, some villains, a smoke-filled room, an early setback and a great final conflict vouchsafing apocalyptic justice. It cleaves nicely to the monomyth archetype. It sees Ms. Letby’s ordeal as discrete: a one-off, freak occurrence that no-one saw coming but that we have nobly resolved, restoring order to the universe. It appeals to the would-be hero, riding in on a charger, saving the damsel clearing out some some bad apples and returning home in triumph. The world is left in situ: everything, and everyone else can remain in place doing exactly what they were doing. This is justice as a surgical strike. Everyone else in the system gets a pass. For, if this really was a wantonly malicious action — if the system is otherwise ship-shape and coming up to brief — it should not happen again, and should not have happened before. But it’s a bad explanation But since we know it has happened before, and since, “wanton malice” is also a bad explanation. The “healthcare serial murder” pattern, whereby nurses are convicted of retrospectively constructed crimes on next to no direct evidence over their insistent denials, keeps recurring. If it keeps recurring and wanton malice is the cause, then the system is vulnerable to wanton malice, and needs to be fixed. Rooting out bad apples is, at best, a game of whack-a-mole. They will keep popping up as long as the system is configured to produce them. But it isn’t likely to be wanton malice, for two reasons: firstly, the criminal justice system is pretty good at identifying vexatious complainants and disingenuous witnesses and excluding their evidence. Secondly, the healthcare system is pretty good at screening out vexatious people so you don’t get truly malicious complaints in the first place. Taking these in reverse order: The medical profession is comprehensively regulated and governed. Its practitioners are systematically enculturated, trained and credentialed to eliminate wantonly malicious people. Over the 15 or so years it takes to qualify as a doctor in the UK, candidates are exhaustively vetted for fitness to practice. The profession weeds bad apples out. For the same reason, even compared against the already low rate of murderousness in the general British population, we should not expect many nurses to be murderers. That incidence would be far lower still. rNo system is perfect, and it might not catch all malicious professionals — it is, of course, not impossible that a senior medical professional would wilfully railroad an innocent nurse to prison — but the incidence of that kind of behaviour should be extremely low. We should not expect to find four malicious professionals colluding in the same hospital. If we do, then the problem is predominantly with the system, not the bad apples. The Cheshire Triangle But the “healthcare serial murder” pattern repeats, almost identically, all over the world — Brazil, France, America, the Netherlands, Italy, and in the UK. It happens a lot in the UK. It happens, in fact, in a small patch of the English heartlands I call the “Cheshire Triangle” where there have been nine alleged cases in quarter of a century, including Beverley Allitt (1991), Anne Booth-Grigg (2002), Colin Norris (2002) Barbara Salisbury (2002), Ben Geen (2003), Rebecca Leighton (2011), Victorino Chua (2011) and of course Ms. Letby. The geographical and temporal clustering is striking, as is the modus operandi: seven of the nine involve allegations of insulin poisoning. The Cheshire Triangle — yes, it is a terrible name: you are welcome to suggest alternatives — is unusual not just for its spatial and temporal sequence. The juridical strike rate is also uncommonly low. Of the nine cases, one has been overturned, two were dropped before trial, one resulted in no murder convictions, and four are the subject of active, ongoing challenge. If there really are vindictive hospital administrators, then there are a lot of them in a small area. If there really are nurse healthcare serial murderers, there are a lot of them in a small area too. Maybe it isn’t the apples All this points away from bad apples. For either: * There have been many serial murderer nurses in and around Cheshire, who were all correctly identified by their colleagues. * There are many malicious hospital consultants in and around Cheshire, who have each railroaded innocent nurses to prison. * There is some odd combination of the above, where some were genuine nurse serial murderers but others were malicious vilifications of known innocents. * Or something else is going on: there is, instead, some kind of latent system error — a recurring failure mode in how doctors, hospital managers, police, lawyers and courts interact with unusual clusters of medical misfortune. In this case, perhaps cognitive biases, institutional and financial priorities and conflicting personal incentives — and not outright malice — are at work. Unless there is compelling direct evidence to corroborate them, scenarios 1 and 2 are equally unlikely, and scenario 3 is even less likely: the first two each require one rare event (genuine murderers or malicious consultants) and the third requires both. From everything we know about how complex organisations operate, how the people in them behave, and how prone the combination is to failure, scenario 4 is totally plausible. It is, in essence the “Post Office Horizon” scenario. It looks bad: it looks like systematic malice up and down the county — take your pick by whom — but it is nothing of the kind. Translating that last scenario to the Countess of Chester: these are not serial murderer nurses or malicious consultants, but a strange combination of circumstances, events and interacting social structures that creates scenarios that lead the consultants to mischaracterise an innocent nurse as as a murderer, and this intersects a latent vulnerability in the criminal justice system, such that these cases are not seen for what they really are. This happens. We know it happens. This is not to say that the consultants — or for that matter the implicated nurses— are entirely without sin, or above stern criticism, but they are not the root cause of the problem. They are, in a way, its symptom. Something else is driving this. If the system were working properly it would intervene on time: it would identify the sins and failings of nurses and consultants and stop them: they would get the censure they deserved at the time, not years later, after rectification of a terrible injustice. This is a far more plausible explanation. It does not satisfy the wish for a quick clean resolution. It does not satiate the bloodlust for retribution. It points instead to hard yards: this is a far less tractable problem. The goal should be to fix the system, not defenestrate bad apples. Even if they are bad apples, the system tolerated them. Rid the system of its defects. Make it immune to malicious doctors — and for that matter serial killer nurses! On either account, the system has repeatedly failed. Why the system failure points away from malice The UK’s criminal justice system has, of late, had its moments, but on the whole, its remarkable achievement over centuries has been to evolve techniques to counteract malice. It is good at isolating liars and rooting them out. This is another reason these doctors were not probably not outright malicious: if they were, the justice system would have found them out. Its weakness here may be exactly that they weren’t outright malicious: they were, instead, accepted as experts expressing sincerely-held views. The system has a weak spot with expert evidence. Again, this is not a secret: the Law Commission has been warning about it for years. Experts who are simply mistaken are harder for non-experts to gainsay. They are resistant to cross-examination. They are harder to falsify. Of course, sincerely-held views can become more tendentious as contradicting information emerges. But once we commit to a position, we are motivated to cling to it long after it is tenable. We should expect buried conflicts of interest, methodological errors, cognitive biases and so on—the ordinary artefacts of imperfect humans interacting imperfectly, in other words—to cause this sort of thing. Attributing malice—or, for that matter, even blame—is to be distracted from the far important issue of understanding the interlocking system effects that cause these outcomes and fixing them. It is surely better to reorganise the system to stop these miscarriages happening—isolating root causes of the clusters themselves—rather than embarking on a witch-hunt against (perhaps) below-average doctors. The system should be designed to cope with ill-advised acts from below-average doctors, because literally half of all doctors are below average. There’s another reason to prefer the systems explanation over malfeasance: that way you create a route by which incumbents can, without personal prejudice, accept there is a problem and work to fix it. If you back accusers into a corner they are bound to be defensive. Attributing blame is to take sides and entrench positions, rather than to diagnose the problem and resolve it. In other words, if you really want to fix a problem, as a first step, don’t blame people who may be, in their own way, as much victims of the system as anyone else. Sure: the consultants may not be in prison, but if Ms. Letby is exonerated their reputations are unlikely to recover. Their errors were, at first, understandable: this happens a lot, after all. If the system worked to catch and remediate an early error, rather than entrenching it, the consultants would not be in the place they are now in. Fix the problem. Thanks for reading! This post is public so feel free to share it. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe [https://jollycontrarian.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_2]

Lucy Letby: waiving, or drowning?

From all that terror teaches,From lies of tongue and pen,From all the easy speechesThat comfort cruel men,From sale and profanationOf honour and the sword,From sleep and from damnation,Deliver us, good Lord! G. K. Chesterton [https://jollycontrarian.com/secure/index.php/G._K._Chesterton], O God of Earth and Altar A mystery persists. What is it about this waiver of privilege [https://jollycontrarian.com/secure/index.php/Waiver_of_privilege] that so fixates everyone? It is plain, under current rules, Ms. Letby must waive privilege on the topic of fresh evidence, chiefly to determine whether this new material really is “fresh evidence” and, if not, why not, and why was it not presented when it could have been at trial? Ms. Letby’s new barrister, Mr. McDonald, is hardly shrinking violet. On most topics, he won’t be quiet. On this one, he is curiously reticent. It is a formal step, but he does not seem to have taken it. (We don’t know this, of course, but it is consistent with his public statements). It may be he has not yet been asked. But as the law stands, the appeal cannot get much further without it. If, as he says, Ms. Letby is innocent, there shouldn’t be anything to lose. Should there? The apparent hold-up alerts prosecution supporters — who are prone to this sort of thing — to the smell of a rat. Aha: the defence is hiding something. The privilege question brings together three large perplexities of this confounding case. They go along way to explaining why it is so controversial: * The missing defence evidence [https://jollycontrarian.com/secure/index.php/Where_was_the_defence%3F]: If the prosecution evidence really was as flimsy as the “Letbyists“ say, why on Earth did Ms. Letby’s defence not present evidence to contradict it? * The copious trial [https://jollycontrarian.com/secure/index.php/Lucy_Letby:_you_had_to_be_there]: If the prosecution really was a farce, how on Earth, after ten months of eviscerating cross-examination, objection and legal submission, did the jury convict? * The privilege question [https://jollycontrarian.com/secure/index.php/Waiver_of_privilege]: On the other hand, if Ms. Letby really is innocent — if this really is an epochal miscarriage of justice, then what does she have to lose from waiving her privilege? Thanks for reading! This post is public so feel free to share it. The innocent have nothing to hide “The innocent,” they murmur conspiratorially, “have nothing to hide.” From the outset, prosecution supporters — let’s call them “guilters” — have bridled at the very idea anyone might doubt Ms.Letby’s guilt. But, to their ongoing, suppurating chagrin they cannot produce a gotcha: there is no simple swingeing juridical sword that can slay this heretical campaign for once and all. What don’t you understand? She was tried and found guilty. Their mood has only darkened as the public debate as developed. In the town square, at least, the miscarriage campaign has only gained momentum. Every new turn seems to support it. The guilters’ ramparts continue to erode. “But,” they like to say, “in the town square, talk is cheap. Talk in a criminal trial is not.” This is right. Criminal trials are filtered, chaperoned and climate-controlled. Careless talk is not allowed. Every utterance is frisked. Every action must conform to common law principles honed over centuries with the single goal of isolating truth and reasonable inference from the “easy speeches that comfort cruel men” — just the sort of carry-on you will hear in the town square. The trial verdict thereby acquires a mystical status of higher truth. It is all that matters. It cannot be impeached by scurrilous tittle tattle in the taverns and bars — the kind of thing you are reading now. In this oasis of probity, after time and weighty consideration, a jury of twelve ordinary citizens found Ms. Letby guilty. What later discussion happens outside the marketplace — the hoary banter amongst squabbling fishmongers — is of no moment. Barristers are uncommonly fond of this view. Especially senior ones. But you can hold it for only so long: experience shows the courts can and do get things badly wrong. And when they do, they are notoriously slow to acknowledge it. Outrageously so. And when they do finally see the light, their change of heart is not, generally, occasioned by their own introspection. Rather, it arises because people outside the sanctuary — squabbling fishmongers in the town square, if you like — make an unholy racket about it. Unholy. I use that word advisedly. Often, until their change of heart, the legal system regards such efforts with contempt. But the “marketplace of ideas”, with all its squabbling fishmongers, is a good leveller: after all, cruel men can make easy speeches from either side of the aisle.[1] [https://jollycontrarian.com/secure/index.php/Lucy_Letby:_waiving,_or_drowning%3F#cite_note-1] What is remarkable about the public debate, given the resounding nature of the convictions, has been its imbalance. It has been one-way traffic. In eighteen months, the guilters, though resolute in giving no quarter, have barely fired a shot. All they have is the trial. That is their citadel. But try as they might, they cannot turn up any incriminating revealers beyond it. Nor can they find anyone with germane expertise to corroborate the expert opinions the crown presented at trial. If Ms. Letby really is guilty, this, too, is a deep mystery. All the more surprising, because those finicky rules of criminal procedure are designed in large part to protect defendants: to prevent unfairly prejudicial inferences being drawn about the accused in front of a biddable jury. But now the jury has done its job and been sent home, there ought to be plenty of prejudicial inferences that, unbound by the court’s careful rules, guilters can lob about on social media. But — judging by the feeble dreck they do come up with — there don’t seem to be. As a result, public debate has been a piecemeal demolition of the crown’s case. And nor has it been just we legion of fishmongers and poundshop Poirots [https://jollycontrarian.com/secure/index.php/Poundshop_Poirot]. In 2024, no less august an outlet than the New Yorker published 13,000 words questioning statistical misconceptions in the trial. Since then, a procession of world-renowned experts, from places as far-flung as Canada and New Zealand have intervened, unbidden, to support the defence. What would prompt recognised experts, apparently without recompense, to stick their necks out in support of a convicted multiple-murderer of premature infants? The best the guilters can come up with is that these experts are dupes — victims of, or complicit in — an “innocence fraud”. (This is a form of psychological mass manipulation they appear to have made up.) Capsizing the Bayesians Those speaking for Ms. Letby keep dragging the discussion back to probabilities. In the guilters’ eyes they ignore the “hard facts” of Ms. Letby’s trial and conviction. And, they remind us, none of these newly-arrived experts witnessed anything. (In fairness, nor did the prosecution experts who gave evidence at trial, a fact the guilters gloss over.) So these defence experts can only present their knowledge abstractly: they can say, “ah, yes, but the collapses could have been caused by this”; “It’s a lot more likely to have been that”, but they cannot tell us what actually happened. Guilters have found the hypothetical nature of these contributions exasperating. “What does it matter that she wasn’t likely to do it if we know she actually did it?” This rhetorical is a neat lay summary of Bayes’ theorem [https://jollycontrarian.com/secure/index.php/Bayesian_reasoning], by the way: the unspoken answer is, “it doesn’t matter a bit: if she did it, the improbability of that fact in the abstract is entirely irrelevant.” But — unless one is prepared to accept the trial verdict without question, and “Letbyists” aren’t — we don’t know she actually did it. The case is maddeningly lacking in concrete evidence. So, probabilities do matter. As the debate has moved on, those defence hypotheticals, those appeals to abstract probabilities over “proven facts” — the very lack of proven facts to settle things over way or another — has stubbornly remained, while the several circumstantial limbs of the prosecution case that grounded the original convictions have, one by one, given way. Her “confessions”, taken out of context from a morass of stream-of-consciousness scribblings that also asserted her innocence and victimisation, were nothing of the kind. The handover notes found under her bed weren’t “serial killer trophies” after all: by and large, they had nothing to do with the charges. The prosecution expert had his paltry understanding of air embolus symptoms, cribbed from a general and long out-of-date paper, perfectly backwards. The police misread door-swipe data immediately before significant events to have Ms. Letby entering the ward rather than, as was in fact the case, exiting it. Rather a consultant fortuitously discovering Ms. Letby standing inertly over a desaturating infant “virtually red handed”, the consultant’s own contemporaneous notes, not disclosed at trial, suggest Ms. Letby called him to the emergency. The insulin immunoassay equipment used to test samples was unreliable, known to throw out errors of exactly the magnitude of the readings cited by the crown as “smoking gun” evidence of Ms. Letby’s malicious intervention, and the tests were not rerun or corroborated. Not just one or two of the prosecution planks have been undermined: all of them have. There is a better, more likely, explanation for every one of the prosecution’s key contentions. These are not trifling issues. Even taken separately, they would throw significant doubt on the verdict. Together, they suggest the trial was fundamentally, fatally flawed. The tide of public opinion has, accordingly, turned. The dwindling band of defiant guilters hold out hope for a clinching fact that would torpedo all this confounded hypothesising. To reiterate: all abstract “prior” probabilities, however compelling, can be overturned by “posterior” fact: just one fact could do it, but the longer things drag on—the more everyone combs through the details, the less likely such it is such a fact would have lain undiscovered. We’ve been through the trial and eighteen months of fractious banter. The police have investigated tirelessly for a decade now: they are still going, they say, debating further charges. But nothing. Privilege as the final frontier There is one last place no-one has checked. It is a place unusually likely to contain “killer facts”, what’s more: it is just the sort of place you might find a clincher. The record of private, candid communications between Ms. Letby and her criminal lawyers. This is, as we know, guarded by the sacred constitutional dragons of privilege. Ordinarily, they are impregnable. But here, by dint of a quirk of recent case law — arguably a bad statement of law, but let’s park that, because, for now, it remains good law — if Mr. McDonald wants to proceed, he must stand his dragons down. Guilters, therefore, turn their focus on Mr. McDonald. He seems to baulk at the very thought of waiving privilege. They are attuned to smelling rats and, in Ms. Letby’s strange hesitance to give way on this privilege question — and, really, that means her advisers’ reluctance[2] [https://jollycontrarian.com/secure/index.php/Lucy_Letby:_waiving,_or_drowning%3F#cite_note-2] — think they may at last be onto one. What is he hiding? This, perhaps more than anything, gives guilters hope they will be finally vindicated. Mr. McDonald is sitting on a devastating “posterior” fact: a clincher no-one else knows that, being privileged, is impervious to enquiry, but which, if it got out, would blow all the defence experts’ careful hypotheticals out of the water, for once and for all putting Ms. Letby’s guilt beyond doubt. Common law rules require appellants with new legal advisers who wish to introduce fresh evidence on appeal to waive privilege as far as is needed to satisfy section 23(2)(d) of the Criminal Appeals Act 1968. That is to help satisfy the Court that there is indeed a reasonable explanation for the appellant’s failure to adduce the evidence at trial. Ms Letby’s trial counsel, Mr. Myers, must file what is called a “Gogana statement”[3] [https://jollycontrarian.com/secure/index.php/Lucy_Letby:_waiving,_or_drowning%3F#cite_note-3] attesting to the evidence he had and did not have, what steps he took to find it and why, if it was available, he did not use it. These are all questions of great interest in this case. The “thin end of the wedge” argument Mr. McDonald’s publicly expressed view on why he is reluctant to waive privilege is different. It was reported in the Guernsey Press — why not? — as follows: If privilege is waived, they’re going to have access to every single conversation she’s ever had with her lawyers. You know what they did with her Facebook searches, and with a text message conversation she had with another doctor, Can you imagine if they had access to every single conversation that she’s ever had with her lawyers, all there in front of them, how that could be used against her, if there’s an inconsistency in something she said four years ago and has changed her mind in whatever way it may be? That’s your area of concern when it comes to waiving legal privilege? [4] [https://jollycontrarian.com/secure/index.php/Lucy_Letby:_waiving,_or_drowning%3F#cite_note-4] In my view, for the little it is worth, this does not really hold water [https://jollycontrarian.com/secure/index.php/Waiver_of_privilege]. Courts do not play fast and loose with privilege. The waiver would be limited to Mr Myers’ “Gogana statement”. All other communication with lawyers— everything except the specific question of what evidence was available and what good it could do her case — would remain privileged. So what are some other reasons to hesitate? The trial is that air-conditioned crucible of truth, remember: that is where opposing counsel can, within carefully developed rules, pick holes in the defence evidence. Or blow holes in it. The defence’s reasoning for not subjecting its experts to such an interrogation might be revealing. Mr. Myers might have told his client any of the following things: “This evidence is flimsy, and prosecution cross-examination could undermine it.” The “it’s feeble evidence” argument In their book, Unmasking Lucy Letby [https://www.amazon.co.uk/Unmasking-Lucy-Letby-Diligent-absorbing/dp/1399625160/], Judith Moritz and Greg Coffey lean towards the first alternative: the defence did not lead evidence because what they had was flimsy, and vulnerable to cross-examination: Although Dewi Evans and Sandie Bohin did most of the heavy lifting in the prosecution’s scientific arguments, these other experts made their own contributions to specific parts of the prosecution case. That raises an obvious question: why did Letby’s defence not call their own army of experts — their own pathologist, their own radiologist, their own insulin expert, and so on? Did her defence team fail to seek out their own experts? Or — as in the case of Mike Hall — did Letby herself choose not to call any experts, and if she didn’t why didn’t she? I don’t doubt this is right, but nor does it really have much bearing on whether to waive privilege. The proposition here is that the defence went to get rebutting evidence at the time, and what they received from the experts they spoke to was not enormously encouraging. Given the nature of the prosecution evidence — itself speculative and hypothetical in nature — this is not surprising: no credible expert is going to refuse to rule out a remote possibility, so the defence evidence might be taken in a way to affirm the prosecution case, especially when framed that way by prosecution cross-examination and closing submissions. If you can’t land a knockout punch on the prosecution case, why open yourself up for a counter-jab? Experts consulted at the time may have been unenthusiastic about the prospect of going to extraordinary lengths to defend someone already portrayed in the public sphere as a likely monster — even radiologists are human, after all. But that was then. Public opinion has shifted. The panel of international experts now have been a good deal more categorical and have identified further nuances and medical subtleties that were not addressed at trial. They could have been addressed at trial, perhaps, but they were not. The Court may take something of a dim view here — but on the other hand, if a potential expert witness is not volunteering subtle and nuanced information, it is a bit unreasonable to expect a non-specialist barrister to recognise it: the very reason we have expert witnesses in the first place is because these things are not intuitive or obvious to the jury. Nor would they necessarily be to a criminal barrister. The Court has an option here: if it is not minded to hear the evidence, it has a justification for not doing so. If it is, it has the discretion to get over the hump. For all its formal insistence on analytical rules, the “temper of the times” will have a bearing here, and Mr. McDonald’s efforts to change that temper may be telling. In any case, this does not feel like a clinching argument to resist waiving privilege. The Court’s supposition will be that this evidence should have been presented at the time, and anything Mr. McDonald can present to explain why it was not must help — or elucidate his case — in some way. The “it undermines the defence case somehow” argument The second has been aired in the town square by barristers of some renown. It is not that the evidence itself is wrong, but it kicks away vital support struts for other aspects of her account of events. But since Ms. Letby’s defence has been “Beyond knowing it was nothing to do with me, I do not know what happened”, and since the evidence in question would be presented not to support her concrete account of events — she hasn’t given one — but to undermine a tendentious hypothetical theory advanced by the prosecution, it is hard to see what damage this evidence, or any evidence, could do, beyond just seeming a bit feeble. That alternative accounts conflict with each other does not matter when they are hypotheticals. What matters is that they, in the alternative, conflict with the prosecution’s case theory. The “I know she’s guilty” argument There is a third possibility. This one is viable — highly unlikely, but certainly not impossible. Perhaps trial counsel Mr. Myers was unable to lead this evidence, even though it is true and correct in itself, because doing so would mislead the Court. A barrister’s ultimate duty, over and above even his duty of privacy is to the Court. How could true evidence mislead the Court? Well, remember our Bayesian inferences and the probability conundrum we discussed earlier. There are background, or “prior” probabilities from which inference is possible in the absence of anything better — “statistically, what was the resting likelihood of murder, compared with some other benign explanation for the collapses?” — and then there are posterior probabilities — is there anything better that might adjust those underlying base rates? “What specific information is there that Ms. Letby did — or did not — cause the collapses that would undermine the “prior” base rate assessment?” If the defence knows of “killer” posterior facts — excuse the pun — that would render abstract hypotheticals irrelevant, then it would be highly misleading to present that abstract hypothetical evidence. It would be a serious breach of professional obligations. Mr. McDonald’s “fresh evidence” is hypothetical. It is all to the effect that “there is a far more likely explanation than murder.” It would be quite irrelevant if, for example, Ms. Letby had made it clear to her counsel that she had, in actual fact, attacked the infants. If she had told her lawyers: “Between these four walls, you should know that I So great is the Court’s reverence for form over substance, that it will tolerate this absurd hypothetical. (I do not for a moment think this happened, but it could.) Such a defendant could ask her counsel to take her case. But counsel would be bound by the overriding duty to the Court. He cannot mislead the court, but nor can he let the court in on what Ms. Letby has said. He can say to her: “I can defend you, but only by putting the Crown to proof. The Crown, and not you, has the burden of proving the charges. If it cannot, you will walk free. I can make them prove their case, and I can do my best to challenge their evidence and counter their arguments. But I cannot make a positive case for you. I cannot present alternative hypotheticals that I know to be untrue.” Wrap up If this is right then the guilters have their smoking gun. As long as Mr. McDonald has being cagey about it, they will hang on to this conviction: at this point it is pretty much all they have. It explains the mystery missing defence evidence, and it explains the hesitation over waiving privilege now. This is the “killer fact” that could emerge from even a narrow waiver of privilege. Still, it is extremely unlikely for a number of reasons, the main one being that if it was inappropriate to lead evidence about misleading priors then, then it would be no less problematic to lead it now. If the defence knows Ms. Letby did these acts it cannot lead evidence supporting the proposition she might not have. But clearly Mr. McDonald does want to introduce it. He plainly sees it as his best and most powerful tactic. He cannot regard it as misleading. And let us not forget his predecessor Mr. Myers went into trial fully intending to present defence evidence — as is evidenced by Ms. Moritz investigative journalism — which is why this is even a question. Mr. Myers submitted witness briefs at a pretrial conference of expert witnesses. He had his own expert, Dr. Hall attend trial throughout and seems to have made decision not to go with it at the last minute. There are sound reasons for not leading underwhelming evidence that may have done more harm than good. And, Mr. Myers tried to introduce Dr. Lee’s evidence about air embolism in an appeal. This is not consistent with his knowledge of Ms. Letby’s malicious action. He would not have done that — he would hardly have mounted an appeal at all — if Ms. Letby had been convicted of offences for which he knew she was guilty. But if the real reason for withholding was that the trial witnesses weren’t coming up to brief, why the reluctance to waive privilege? Why not say that? Things have changed. The evidence available now is much stronger. There is an army of leading academics behind it. What is most baffling is the “PR” value is all of this. Mr. McDonald has, to date, been canny with his PR. But he is losing on this one. The speculation that he is hiding something — and guilters are making a meal of it — is corrosive. The longer McDonald delays, the more that speculation hardens into its own narrative: “The defence is hiding something.” Nobody — but Mr. McDonald and his team — knows. Only Mr. McDonald can shut this debate down. After all: if it were true — if Ms. Letby had somehow copped to these awful crimes — then we should all want to know that. Gulling scores of distinguished experts into unwittingly defending a confessed murderer would be grotesque. It would be an outrage. The Court deserves to know. The public should know. This debate should, either way, be ended. But if it’s not true — and I don’t believe it is — Mr. McDonald needs urgently to take back control of the narrative and quell this speculation. He can do that by doing exactly what the law requires: advising Ms. Letby to waive privilege on the narrow question, have Mr. Myers file his Gogana statement, and put the matter to bed. This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe [https://jollycontrarian.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_2]

Juries, proof and the appalling vista

Trigger warning: this newsletter assumes readers are of sufficient maturity to understand and not be wounded by cultural references to cocaine, Starsky & Hutch, and physical money made out of paper. Also: these events happened a long time ago. My recollection is imperfect, and I have definitely changed and embellished the narrative to make it a good story. Dirty banknotes She don’t lieShe don’t lieShe don’t lieCocaine.J. J. Cale, Cocaine There is an urban myth that every bank note in circulation has traces of cocaine on it. Except, it isn’t an urban myth: it’s a fact. I know it is a fact because about 15 years ago I sat on a jury in Wood Green and listen to a police forensic expert have to admit it under cross-examination [https://jollycontrarian.com/index.php/Cross-examination] during a criminal trial. The trial concerned a gentleman from Tottenham who, the Crown alleged, had been dealing drugs. He did this, according to the indictment, from a car parked in a secluded side street off the North Circular. The case rested on three items found in the defendant’s possession: a wallet stuffed with cash, a set of portable electronic scales and, as I recall it, 79 individually wrapped “rocks” of crack cocaine. It seemed open-and-shut. The Crown called a police forensic scientist to give technical evidence about the cash. Firstly, there was a lot of it. A little over £5,000: a good deal more than you might expect a gentleman of the defendant’s prospects to be carrying around North London at three in the morning. Secondly, it was generously dusted, the witness said, theatrically clearing his throat, With a substance that mass-spectrometry revealed to be a mixture of sodium bicarbonate and methyl-3-benzoyloxy-8-methyl-8-azabicyclo-octane-2-carboxylate — At this the witness paused, for dramatic effect. The judge looked non-plussed. The jury waited for the punchline. He gave it, triumphantly: Which is commonly known as crack cocaine. Every single note was, in his telling, caked with the stuff. We of the jury were resolute. This witness was clearly an expect. He had used reliable scientific tests. He was convincing. There was little doubt what he said was true. But then the defence barrister stood up. His cross-examination [https://jollycontrarian.com/index.php/Cross-examination] ran along the following lines. Defence: In your professional experience, Mr. Henhouse, would you say it is common for banknotes to be contaminated with cocaine? Witness: It is not unheard of. Defence: But is it common? Witness: I suppose you could say it’s common, yes. I don’t know. Defence: Roughly how common? Witness: Ooh I wouldn’t like to guess. Defence: No, I dare say. But indulge me. What proportion of banknotes are contaminated with cocaine? Witness: Well, A fair proportion, certainly. Defence: What counts as “a fair proportion”? Witness: A lot, I suppose. Defence: It’s all of them isn’t it? Witness: I don’t know. Look, I haven’t check every banknote in circulation, have I? Defence: Of course you haven’t. Of course not. But how many have you checked, over your [theatrically checks notes] twenty-seven-year career as a forensic expert? Ten thousand? A hundred thousand? A million? Witness: I should say tens of thousands, yes. Defence: And in those tens of thousands, have you found one used bill that didn’t carry traces of cocaine? Witness: (Mumbles inaudibly) Defence: I’m sorry, Mr. Henhouse, I couldn’t hear you. Witness: No. Defence: No further questions, m’lud. It was beautiful. How banknotes get cocaine on them Now, I’m sure none of my regulars readers will know this, but banknotes are sometimes used to snort cocaine. (Those who do know this presumably found it out, as I did, watching Starsky & Hutch in the 1970s). This is how they get cocaine on them. Not every banknote in circulation has been used to snort cocaine. Nothing like it Rather, cocaine is fine, rather adhesive stuff. It gets everywhere. It tends to rub off on anything it touches. Such as nearby bank notes. Since even law-abiding citizens tend to keep their banknotes together, in a wallet, a contaminated note has plenty of opportunities to rub against innocent ones. Law-abiding citizens also have a habit of passing banknotes around. The will just give them away, to perfect strangers, in a way they won’t, so readily, with their other possessions. A large part of the JC [https://jollycontrarian.com/index.php/JC] is devoted to why and how humans do this, and what it all means: we need not dwell on it here. In any case, one encoked banknote is likely to come into contact with, and infect, many “innocent” ones over its lifetime. This means many law-abiding citizens — basically all of them, according to this police scientist who had sworn upon a bible — regularly carry cash contaminated with a classy recreational drug. [Shouldn’t that be, “Class A recreational drug”?— Ed]. Electronic scales of justice That was one piece of evidence presented — if reluctantly — in the trial. Another was that British drug dealers weigh and package their product using unremarkable consumer durables: digital kitchen scales. These scales, so said the witness, are plenty accurate enough to prepare and apportion crack for retail distribution. I was quite pleased to hear this. It speaks to attention to detail and a commitment to quality control I would not have expected in the criminal class. It is laudable in its way. Plus, those digital scales are neat. We have some in our kitchen. We keep them in a draw with the used chequebooks, spaghetti, dried up felt-tip pens, mysterious keys, broken utensils and ant poison. When the police apprehended the defendant, in his car, parked under a tree beyond the throw of the nearest street lamp, they found some Salter electric scales in his glove compartment. These they bagged up, labelled and presented to the court as “Exhibit A”. In the manner of a conjurer gulling an unwitting accomplice, the prosecutor bade a court official pass the scales, in their bag to the jury for inspection. I was surprised, and rather pleased, to see it was exactly the model we have the Contrarian household’s keys, pens, spaghetti and ant poison drawer. The final exhibit — which the court official did not hand over for inspection, for some reason: we were invited to regard it from afar — was 79 individually wrapped “rocks” of crack cocaine. The same police analyst explained what a “rock” is (one tenth of a gram of cocaine mixed with baking soda), and that its street value was about £2,000. The arresting constable had already testified that he found these in the defendant’s jeans pocket. This was before the era of always-on bodycams, but the defence did not dispute it. These were the uncomfortable circumstantial [https://jollycontrarian.com/index.php/Circumstantial] facts that the defendant’s barrister had to deal with: how to explain what his client was doing in a parked car in a secluded spot, in possession of five large in cash, a set of digital scales and enough cocaine to entertain most of Crouch End for a fortnight, if he wasn’t planning to sell it to people. To be sure, the facts were all circumstantial: no one saw this fellow supplying anyone with any drugs. It required inference. But, as the prosecutor would suggest in his closing submissions, it was not a hard one to draw. Then began the case for the defence. The defence case The defendant turned out to have a rather ingenious barrister.[1] [https://jollycontrarian.com/index.php/Juries,_proof_and_the_appalling_vista#cite_note-1] His strategy was threefold. Firstly, with the unwitting assistance of the police’s own expert, he established that coke-contaminated bank notes are not in themselves evidence of anything. Even the police conceded that, as far as anyone knows, every bank note is coke-contaminated. Secondly, he made a complex submission that, while possession of large sums of money or large quantities of crack invited, to some degree, an inference that their holder for the time being was a drug dealer, having both at once did not: one is tendered in exchange for the other, after all. While the possession of both money and drugs no doubt invited some adverse insinuations about the defendant’s character, that he was supplying drugs to customers on a commercial basis — the offence for which he had been charged — was not one of them. There are obvious flaws in this reasoning — we in the jury saw them at once — but they flummoxed the poor prosecutor, who looked quite blindsided by this submission and was unable to make anything of it. The defence’s last zinger came in cross-examination [https://jollycontrarian.com/index.php/Cross-examination]. It was a master class in the ancient art. Once again, the victim was the same benighted forensic scientist, brought out, so he thought, to establish uncontroversial scientific facts about cocaine and banknotes, and who was already having a miserable day, which got worse when, against his expectation, the cross-examination [https://jollycontrarian.com/index.php/Cross-examination] turned to the kitchen scales. It went like this: Defence: The device recovered from the defendant’s car is a set of ordinary kitchen scales? Witness: Yes, I believe that is right. Defence: Salter ‘ARC’ electronic scales. Witness: I’ll take your word for it. Defence: These are ordinary kitchen scales — the sort of thing that anyone might own. Even members of the jury? Witness: (Observing several jurors nodding vigorously) Yes, I dare say. Defence: But they are also commonly used for measuring up quantities of crack? Witness: (Brightly) Yes. Yes I believe that is very common. Defence: Where do drug dealers usually measure up and package their supplies of crack? Witness: Well, I have no idea, as you can appreciate. Defence: But if you had to guess? Would they do that, do you think, somewhere private, secure, well lit, perhaps with clean hard surfaces? A controlled environment? Witness: Yes, I suppose so. Defence: Like a car parked in dark street? Witness: Well, I couldn’t rightly say — Defence: If you were a drug dealer, would you prepare crack in a car parked up just off the North Circular? Witness: Well, no — Defence: No you wouldn’t, would you? That would be absurd. I mean, just imagine it. Coke would go everywhere! Disaster! Witness: Yes, it probably would be quite messy. Defence: Yes! Quite messy! And as you have told us, cocaine is powdery stuff that gets everywhere, sticks to everything it comes in contact with? Witness: Yes. Defence: And detecting small quantities of cocaine in the lab is a cinch? Witness: Yes, that is right. Defence: And you say the defendant was there, measuring out rocks of crack with these scales, in the dark, on his lap, in the driver’s seat of his Cortina, at three in the morning, in Bounds Green? Witness: Well, I didn’t say th— Defence: Did you find any traces of crack on the scales? Witness: What? Defence: I said, did you find any traces of crack on the scales, Mr. Henhouse? Witness: Well, no — Defence: Did you even test the scales, with all your sophisticated forensic equipment? Did you even look for any of this easy-to-find crack cocaine? Witness: No. Defence: My lord, I have no further questions. It was spectacular theatre. The jury was riveted. And in each of our minds we posed exactly the questions the defence barrister wanted us to, and in our minds we answered them exactly how he wanted them answered, without having to put the questions to the witness at all. The time for closing submissions arrived. As a group we had little interest in what the prosecution had to say. The Crown’s case was obvious. It barely needed closing submissions at all. But we were fascinated to hear from the defence barrister. He did not disappoint. His first submission was that cocaine-contaminated banknotes meant precisely nothing. He suggested that each of us was carrying cocaine contaminated banknotes as he spoke. Then he turned to the kitchen scales. The Crown had conceded, he noted, that a drug dealer had no reason to have kitchen scales in his car. It was singularly preposterous to think he might be measuring out crack on the kerbside. Nor had anyone even asked the defendant what he was doing with a set of kitchen scales. It did not come up in cross-examination [https://jollycontrarian.com/index.php/Cross-examination]. By any measure the scales, he said, were irrelevant. One could not draw any inference about the defendant’s possession of an ordinary consumer durable. The crux of this long but, I hope, entertaining story arrived a bit later that afternoon when we sat down in the jury room to deliberate. I have done jury service twice in my life. It is a fascinating experience: I recommend it to anyone, just as an opportunity to witness how communities form and operate. Out of, perhaps, a surfeit of caution, I have excised any discussion of what went on within the walls — so far as I can even remember it — but the discussion is just as effective in the hypothetical. What follows is hypothetical. The first few moments of a jury’s formal deliberation are critical. A social hierarchy must form, from nothing, on the spot: twelve complete strangers are locked in a room and assigned a grave task. They do not know one another. They have no history. They are blank slates. Their skills, weaknesses and proclivities are unknown. They are, in every sense, equals. There is no organising principle. But this state of equanimity dissolves almost immediately. There are extraverts and introverts. There are logicians and feelers. Judgers and perceivers. Quickly this disparate group self-organises into a social unit with a clear hierarchy. You can imagine a person starting off the discussion like so — I have no doubt he’s guilty, but I don’t think the police has proven it. Quickly, others might join in: Yeah, I mean bang to rights — five grand street value of crack? How is that guy not a drug dealer? But the police were really useless. I would have felt the same way. You could see how, where the perceived social ill is quotidian, people could be incentivised to “send the police a message”: there is form and there is substance, and it is one thing to prefer form over substance, but if you can’t be competent to at least get the form right, you should not be subjecting people to the criminal justice system. In my story — and to be clear, again, it is a story, loosely based on dim recollections, and designed to illustrate a psychological point — there are plenty of nods and winks to a fundamental fact: on the whole, Londoners are not that bothered about the supply of illegal drugs. Many quite like it. For all I know some of the jurors may have been casual drug users — even enthusiastic ones. Wood Green is not far, as the crow flies, from Crouch End. But the law is the law, and juries generally understand their duties well enough. Now the reason I mention all of this is that this liberal disposition to give a defendant the benefit of doubt — even unreasonable doubt — is more likely to happen in some cases than others. There are times, like this, where a jury will positively seek excuses to acquit a defendant. Here the prosecution must not only have a rock solid case that really is, in fact, justified, but they must follow every procedural step to the letter. Any slips, formal or substantive, and they will fail. This is where the charges brought are, technically, against the law, but the jury has limited sympathy for the law. There are many laws on the books that have limited public support. Sunday trading laws, for example. Appalling vistas Our fathers claimed, by obvious madness movedA man’s innocence, until his guilt is provedThey would have known, had they not been confused —He’s innocent until he is accused. —Ogden Nash, Period Period But there are other times where the opposite happens: some law reflect deeply-held community values. Murder, for example. The murder of the vulnerable by those in positions of trust. I have a theory that murder laws do nothing to change the murder rate: those of us who refrain from murder do not do so because there is a law against it. It is a deeply held moral conviction that the law simply reflects. Would that all laws did this. Where acts alleged are deeply repellent to their personal values, no jury will acquit “just to send the police a message”. In fact — so the academic literature tells us, and it resonates as common sense — quite the opposite. When allegations are monstrous, the jury’s nervousness will be about acquitting, not convicting. The jury will be fearful of unwittingly letting an actually guilty defendant go free. A 2018 study[2] [https://jollycontrarian.com/index.php/Juries,_proof_and_the_appalling_vista#cite_note-2] in Nature’s Human Behaviour imprint revealed just this bias in mock jurors when asked to consider hypothetical crimes of different severity. The more heinous the crime, the more likely subjects were to be convinced by the same amount of evidence. This correlation applied across all participant groups, but was much greater for mock jurors than for prosecutors and other legal professionals. This suggests that emotional and moral reactions to the severity of allegations may unconsciously lower the evidentiary threshold jurors apply when determining guilt. Better the odd innocenti gets banged up than a single monster goes free. This is a jury’s equivalent of Lord Denning’s notorious “appalling vista” rationalisation in dismissing the appeals of the actually innocent “Birmingham Six”. If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous ... This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further. The jury will have felt the same. Terrorism is repellent: not morally so much as personally. Even terrorists have their causes, but we have a selfish interest in their being safely behind bars, and in the agency that put them there being uncorrupt, nonviolent, expert and excellent at identifying and apprehending the right villains and if not that, then at least basically competent. We want to believe that such an agency would not charge the wrong people, inadvertently or wilfully. To acquit such a defendant is to suppose, in the best case, that government agencies are catastrophically failing. And that is if the acquittal is correct. To falsely acquit is to believe murderous terrorists over the upstanding agencies of the state. Who takes that risk? Where does that leave us? Lord Denning was right: this is an appalling vista. He was only wrong in stating we should therefore close our eyes to it. He was very, very wrong about that. But, by comparison, terrorism is an easy case. Where the allegations are morally repugnant — where a jury of citizens is protecting not its own selfish interests but rather guarding the vulnerable from the wickedness of those to whom their welfare is entrusted, our instincts are emotional and the logic is even stronger. If what is alleged is truly horrendous, the victim defenceless, the idea of acquitting a defendant whom we think may be guilty is repellent. If we believe a defendant is guilty, but are not “sure” the law [https://jollycontrarian.com/index.php/Burden_and_standard_of_proof] of the land says we must acquit. We might, enthusiastically, for a gentleman caught in a Cortina in Bounds Green with a wad of contaminated bills — but would we for an alleged child murderer? See also * Lucy Letby [https://jollycontrarian.com/index.php/Lucy_Letby] * Burden of proof [https://jollycontrarian.com/index.php/Burden_of_proof] * Circumstantial evidence [https://jollycontrarian.com/index.php/Circumstantial_evidence] Playlist Well — it couldn’t really be anything else, could it? This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe [https://jollycontrarian.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_2]

Lucy Letby: you had to be there

The investigation into the actions of Lucy Letby, the trial process and medical experts continues to face scrutiny and criticism, much of it ill-informed and based on a very partial knowledge of the facts and totality of evidence presented at court and at the Court of Appeal. This case has been rigorously and fairly tested through two juries and subsequently scrutinised by two sets of appeal court judges. Lucy Letby’s trial was one of the longest-running murder trials in British criminal history with the jury diligently carrying out their deliberations for more than 100 hours. It followed an investigation that had been running for six years – an investigation like no other in scope, complexity and magnitude. It was a detailed and painstaking process by a team of almost 70 police officers and no stone was left unturned. Preparing for the trial was a mammoth task with 32,000 pages of evidence being gathered and medical records running into thousands of pages being sifted through. Around 2,000 people were spoken to and almost 250 were identified as potential witnesses at trial. As the case unfolded, multiple medical experts – specialising in areas of paediatric radiology, paediatric pathology, haematology, paediatric neurology and paediatric endocrinology and two main medical experts (consultant paediatricians) – were enlisted to ensure that we carried out as thorough an investigation as possible. All are highly regarded in their area of expertise and were cross-examined whilst giving their evidence in court. —Detective Superintendent Paul Hughes, Cheshire Police, 2 April 2025 [https://www.dailymail.co.uk/news/article-14564129/Police-hit-ill-informed-insensitive-Lucy-Letby-supporters-questioning-baby-killers-guilt.html]. Thanks for reading! This post is public so feel free to share it. Often spotted in the trenches as the keyboard war rages over Ms. Letby’s conviction — I have seen action — 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 — which were yellow, come to think of it — you simply cannot know the facts and cannot form a useful opinion on her guilt. It is beyond you. Advanced 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, Ms. Letby’s was conducted according to arcane rules: common law [https://jollycontrarian.com/index.php?title=Common_law], statute, the rules of criminal procedure, the law of evidence, and long established (if roundly criticised) principles governing the use of expert witnesses [https://jollycontrarian.com/index.php?title=Expert_witness]. These institutions are meant to, and generally do, vouchsafe justice, but are not infallible. Miscarriages of justice happen. Even outrageous ones. From this tremendous melée — the evidence-in-chief, cross-examination [https://jollycontrarian.com/index.php?title=Cross-examination], submission, objection and each fork-tongued duel between barrister and witness — we expect 12 random citizens to form 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, interrogated or rationalised. The verdict passes intractably into the record, a brute ontological fact, immune to later 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. It may have taken 22 days — if that in itself does not indicate reasonable doubt, what would? — but a guilty soul was justly condemned. Justice came, did its thing, and went. It left no trace. None can now make sense of it. We should not try. But still we must, all the same, quietly abide. The senior bar will be most discomported if we do not. 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 composed of darkness. We cannot apprehend it, so we cannot challenge it. Before a verdict, explicitly, the criminal law does not work like this. Quite the opposite: it is all daylight and backlit halogen lamps. It is, to a fault, transparent, rational and unflinchingly evidence-based: facts are the be-all and end-all. But only the best kind of facts: there are strict rules governing what may be admitted. All facts put before the court 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, it must be sponged from the record. Nor may the opinions of those not in the jury box intrude. Juries, rarely, may be sequestered: news organisations are heavily constrained, on pain of contempt, in what they may say. They may only repeat, colourlessly, things the jury has heard. Social media makes this quite a nightmare. In a criminal court, everything the jury hears is open to audit. Anything that is not is disallowed. Until the moment the jury withdraws to begin its deliberation, nothing in a criminal case can defy comprehension. Darkness is not allowed. Until the jury retires. Lucy Letby [https://jollycontrarian.com/index.php?title=Lucy_Letby]’s trial ran for nine months. The jury deliberated for a month after that. They had a colossal amount of data. Their task was Herculean. It was beyond any reasonable expectation we might have of twelve ordinary men and women. They should be commended for their work, but it is not beyond our comprehension. It 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. Then the judge sums that all up. That took the best part of a month, too. So if we who were not in court ask the question now: How on Earth did she get convicted? Someone ought to be able to give sensible answer. At the time of the original trial, in the public’s mind, there was a sensible answer. It went something like this: It was proven in court: These are good grounds, if true, but they have been under sustained attack at least since Rachel Aviv’s [https://wayback-api.archive.org/web/20240000000000*/https://www.newyorker.com/magazine/2024/05/20/lucy-letby-was-found-guilty-of-killing-seven-babies-did-she-do-it]New Yorker [https://wayback-api.archive.org/web/20240000000000*/https://www.newyorker.com/magazine/2024/05/20/lucy-letby-was-found-guilty-of-killing-seven-babies-did-she-do-it] article of 13 May 2024 [https://wayback-api.archive.org/web/20240000000000*/https://www.newyorker.com/magazine/2024/05/20/lucy-letby-was-found-guilty-of-killing-seven-babies-did-she-do-it] brought concerns about the convictions into the mainstream. The concerns were already there: a hardy band of campaigners — “Poundshop Poirots” in Dr. Evans’ phrase, “a strange band of misfits and ghouls” in Liz Hull’s — had been questioning the trial rationale since long before its verdict. The New Yorker piece created quite the brouhaha: indeed that is the first time I became aware there were any questions about the verdict. At first, senior barristers came out to defend the system. They were dismissive of the concerns of those not steeped like an old tea-bag in British criminal procedure. But the Poundshop Poirots were not deterred. It turned out not all were “fanatics and pseudo-scientists” as Liz Hull’s piece in the Daily Mail described them: quite a few were recognised professionals in law, medicine and statistics, some with significant experience in miscarriage of justice cases. The brouhaha carried on. It is still going, to this day. After more than a year of sustained interrogation by dozens of world-leading experts — see panel — as well as the misfits and weirdoes of Liz Hull’s imagining; of examination of trial transcripts, court reports, medical reports, judgments and appeal decisions the grounds on which Ms. Letby was convicted do not seem to hold much water. What is just is significant is this: in the 15-month period since the New Yorker article, despite an equally active group of internet sleuths, journalists and advocates defending the verdicts, not one new fact or opinion has emerged that unequivocally supports the facts and opinions the prosecution led at trial. The prosecution has its stout supporters, but beyond the original trial participants, none are medical experts, statisticians or lawyers. Their support is fully limited to defending the outcome of the actual trial as it was litigated. There is no outside support for the wider proposition that Ms. Letby actually murdered these infants. The defence is, in other words, strikingly formalistic: it is not a defence of an abstract question of substantive justice — is an innocent woman in prison — but of the formal qualities of a specific procedure — did her conviction adhere to the posited formal requirements of criminal procedure? But justice not only has to be seen to be done. It has to actually be done. Now: even if she were innocent, you would expect some uncomfortable material to emerge about Ms. Letby — no-one is perfect, after all. But it has not. There have been hints and intimations of further charges but they have notably lacked detail and were accompanied by no fresh evidence or opinion. Since the verdict was handed down, those supporting it have done so purely on the material presented at trial. They have rejected out of hand all subsequent commentary, however qualified, as if only the blast furnace of trial scrutiny can give evidence the necessary tempering and logical rigidity to stand as fact: nothing less, however carefully articulated or eminently authored, can match. Those who were not present cannot even understand. So the refrain still rings out: You had to be there. Now, to be sure: journalists can overplay their hands. We are in the age of clickbait. One so minded could sift through the record, cherry-picking facts from quotidian contexts to make a sensational story-line. One could blow trifling discrepancies out of all proportion. One could confect the wholly false idea of an injustice. But this is hardly the New Yorker’s style. But when the reputation of the British criminal justice system is in the, er, dock, it is right to pause for breath, and say something trite, like: “Extraordinary claims require extraordinary evidence”. They certainly do. 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 [https://jollycontrarian.com/index.php?title=Texas_sharpshooter] aspects: The New Yorker was right: the spreadsheet was assembled to advocate for the theory that Ms. Letby was the perpetrator: the CPS appeared to concede as much in court [https://jollycontrarian.com/index.php?title=Lucy_Letby:_how_the_charges_were_selected]. Lawyers questioned the operation of the expert evidence [https://jollycontrarian.com/index.php?title=Expert_evidence] rules: the weakness under cross-examination of the prosecution witness and the strange absence of any defence experts [https://jollycontrarian.com/index.php?title=Lucy_Letby:_the_missing_defence_evidence]. Forensic scientists challenged the insulin evidence. Those few with expertise in the field roundly debunked the prosecution expert’s evidence on air embolus, which fundamentally misunderstood the literature he purported to rely on. A degree of frantic dissembling came back over the trenches — the case didn’t hinge on statistics [https://jollycontrarian.com/index.php?title=Lucy_Letby:_statistics] or the evidence of a single expert, it was claimed — but these deflections came largely from journalists, not credentialised experts. Few engaged with the meat of the criticisms being aired against the convictions, other than to say “these things have not been tested in court”. In matters of great public debate — at least, where there is an arguable case — we are used to experts lining up on either side to make their case. Even though the prosecution had succeeded at first instance, that did not happen here. The crown’s actual expert witnesses stood their ground, doggedly refusing to budge on any of their conclusions, even if their reasoning changed as needed to suit the emerging fact patterns. But no new experts, not already involved, came forward to defend the prosecution. This was despite energetic efforts from contrarian news sources — notably Private Eye — who have repeatedly appealed for experts to corroborate the views presented in evidence to support what would, presumably, be an easy status quo. None have. 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 and NHS narrative, free of charge. It was just no one was lining up to support it. I have been running an informal log: see the panel. Over fifty well-recognised experts in their respective fields of neonatology, endocrinology, statistics, forensics and law have expressed misgivings about the outcome of this trial. Outside actual witnesses, just two have publicly supported the verdict. 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 guilelessly advancing the interests of a convicted 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 are shut. But convicted criminals do not go into an oubliette [https://jollycontrarian.com/index.php?title=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 answer: how was the system satisfied the criminal did what the Crown alleged? 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 [https://jollycontrarian.com/index.php?title=Burden_of_proof] inverts upon conviction: the Crown’s burden is satisfied; now the defence must discharge a burden to overturn a conviction. And so it must, but only to the balance of probabilities — though if a defendant wants compensation for her false imprisonment, she must prove her innocence beyond reasonable doubt [https://jollycontrarian.com/index.php?title=Beyond_reasonable_doubt]. Never mind compensation: it is hard enough just to get out of clink. The Court of Appeal asks more that just a better job of stating your case: if no procedural irregularity or legal error, you cannot just have another go at explaining why the Crown’s evidence is unreliable. The jury has decided. You must present new evidence, not reasonably available at trial, to shine a new light, that the Court is persuaded might have changed the jury’s mind. While its appeal powers were crafted widely, the Court of Appeal has consistently interpreted them narrowly, creating binding precedents for itself. It will not do that you didn’t introduce evidence first time around: you must show that you couldn’t have. In this way, a defendant is beholden to her counsel’s competence and strategy. It is said that there are sound policy reasons for this: the law must dispense certainty [https://jollycontrarian.com/index.php?title=Certainty]. A vital aspect of criminal justice is finality. We do not want vexatious criminal ne’er-do-wells cluttering the system with spurious appeals. Indeed, no: but it is different if they are, in fact, innocent. If you have misconfigured your frontline system to routinely convict law-abiding citizens, the least you can do is install a quick and reliable “undo” feature. However you look at it, statistically, the justice system is designed to convict the occasional innocent person. Not even by accident. The criminal justice system has evolved a highly formalised methodology. More than most institutions in modern life, it stands on ceremony. But as all formalised systems must, it has escape valves. It can deliver discretionary clemency where its formal systems have created a manifestly perverse result. It is a discretion the Court of Appeal is notoriously reluctant to use: the idea that the sound operation of criminal procedure, in a high-profile case like this, could produce a manifestly perverse result is a “vista” too appalling to countenance. Senior barristers recoil at the suggestion that British justice could fail that badly. But disdain cannot obscure the fact that recently, it has failed this badly. Repeatedly. Just ask 900 odd sub-postmasters. All the same, the defence must make a compelling case. Whereas the prosecution may now make wan allusions to the unknowable genius of a bygone trial, if it wants any traction, the defence must, at this stage present detailed, specific and compelling arguments. Leaving aside for a moment the formal rules governing whether the criminal system is prepared to hear them, plainly, it does. Defence arguments are clear In sharp contrast to those who would defend the convictions, Ms. Letby [https://jollycontrarian.com/index.php?title=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. Ms. Letby’s new barrister has shipped no small amount of professional criticism from his fellow barristers, not for being somehow covert, but for not being covert enough. Mr. McDonald is seen as being too forthright. Barristers, it is felt, should not court the media. As far as some members of the bar are concerned, it is just not cricket. But with a Court of Appeal as hostile to defendants as this one is, one can hardly blame him for thinking outside the box. The same goes for all the “strange band of misfits and ghouls [https://jollycontrarian.com/index.php?title=Lucy_Letby:_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 anxious for attention: that is so say, welcoming of scrutiny and good-faith challenge. There has not been much. Credible challenges that have come back have been either formal in nature: “the rules have been followed, she had her chance, alea iacta est,” and so on — or somehow mystical: there are things that resist intellectual inquiry and must not be disturbed. Some things should not be said. Some questions should not be asked. This is especially perplexing since, generally, it is the prosecution who must make the intellectual running. The burden of proof [https://jollycontrarian.com/index.php?title=Burden_of_proof] lies upon the Crown, not the defence. A prosecutor should be better placed to spell out the ingredients of her case than a defender is to rebut it in the abstract. How do you prove a negative? That the burden reverses on conviction does not alter this fact. If the evidence was so compelling, and the Crown’s case so immaculate, you would think, someone would be able to explain it. The defence is well able to explain itself: its spokespeople can scarcely shut up. 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. So where is the patient exposition of the Crown’s position: sure: the Crown Prosecution Service might not be minded to provide it, but someone? “If you weren’t at the trial, you can’t know”. This is a kind of “emergence [https://jollycontrarian.com/index.php?title=Emergence]” argument. It is routinely run, ironically enough, by people who also were not at the trial. How can they know any better, but by blind faith that the system will work as billed? If this is right then the outcome of no trial can ever be gainsaid, all appeals should be forbidden, and the jury 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. Witnesses make mistakes and can suffer from cognitive bias. Jurors switch off, or are illogical. Counsel can underperform, or focus their case on a set of issues that don’t resonate with the jury. We are entitled as citizens to know about these things. We are entitled to interrogate them. We are entitled to be satisfied about them. Above all, justice, before and after conviction, should remain transparent. If it is really true that you can’t possibly know unless you were in the jury box, then that is a profoundly unsatisfactory thing in itself. Jurors may be selected from the electoral role: they are not the electorate’s delegates. Seeing how little skin they have in the game — by definition, jurors have none — jury decisions should be as accountable to the rest of us as any are other actions of state to oversight, scrutiny and review. Shouldn’t they? This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe [https://jollycontrarian.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_2]

Waiver of privilege

This is a follow on piece from Lucy Letby: waiver of privilege? [https://jollycontrarian.com/index.php?title=Lucy_Letby:_waiver_of_privilege%3F] It is mainly about waiver in a criminal context. The rules around waiver are more developed in the civil cases, since waiving privilege there is not quite as catastrophic to life, liberty and freedom, so it does happen. A document or communication is “once privileged, always privileged”. The principle that a client should be free to consult his legal advisers without fear of his communications being revealed is a fundamental condition on which the administration of justice as a whole rests. Legal professional privilege is the predominant public interest to be upheld, even where the client no longer has any recognisable interest in preserving the confidentiality or has died, or, in the case of a company, been dissolved. — Archbold on Evidence, 12-14 You come at the king, you best not miss.— Omar Little, The Wire Unusually, the JC made a bit of a splash when a recent piece on waiver of privilege [https://jollycontrarian.com/index.php?title=Lucy_Letby:_waiver_of_privilege%3F] in the Lucy Letby [https://jollycontrarian.com/index.php?title=Lucy_Letby] case caught the attention of the Double Jeopardy: Law and Policy [https://open.spotify.com/episode/2SYQuxvTD7txi6p4Pd3aVO] podcast. After the usual introductory blancmange, the article settles down and looks at the case of R v Singh [https://jollycontrarian.com/index.php?title=R_v_Singh] which seems to reverse the sacred principle that no judicial officer can come between a client and her lawyer: that all their words, notes, letters, suggestions, gestures, innuendoes and privately-communicated semaphores may forever, and for all purposes, stay private, except where the very contents of a privileged communication themselves are the issue before the court — if, for example, a defendant appeals on the grounds that she was given negligent advice. Until 2017, there were discrete and unobjectionable rules dealing with two commonly “time wastey” scenarios: firstly, were a defendant has parted ways with trial counsel and appointed new representatives for an appeal; secondly, where the defendant wishes to blame her conviction on her trial representatives doing a bad job. This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. While they are often related, these scenarios are nonetheless conceptually distinct. The rules, in essence, are firstly, that new counsel must confirm to the court they have spoken thoroughly with outgoing counsel and fully understand the background and their strategy at the original trial — this is the rule in R v McCook [https://jollycontrarian.com/index.php?title=R_v_McCook] — and secondly, if the defendant wishes to blame her conviction on her trial representatives’ “inadequate representation”, then she must waive legal privilege in her discussions with the trial representatives to the extent needed for the Court to determine whether the trial representatives were to blame or not. This principle comes from a case called R v Frost-Helmsing [https://jollycontrarian.com/index.php?title=R_v_Frost-Helmsing]. But in 2017, those sensible rules got tangled up with the Court of Appeal’s notorious aversion to hearing fresh evidence in the case of R v Singh [https://jollycontrarian.com/index.php?title=R_v_Singh]. There ought to be a clap of thunder, a lightning bolt and a blood-curdling scream, by the way, whenever anyone says “fresh evidence”, such is the Court’s aversion to it. Now, whenever a defendant has appointed fresh representatives, and they wish to present fresh evidence, they must submit a signed waiver of privilege before the judge will even consider whether to hear an appeal, even if there is no suggestion of negligence by the trial representatives. The text version of the rest of the article — it’s a monster — can be found here [https://jollycontrarian.com/index.php?title=Waiver_of_privilege]. Thanks for reading! This post is public so feel free to share it. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe [https://jollycontrarian.substack.com/subscribe?utm_medium=podcast&utm_campaign=CTA_2]