To think the Lucy Letby case needs a judicial review?

[Edenspirits73]

2 more detailed articles in main stream papers today questioning the Lucy Letby verdict - mirroring the well known New York Times article that wasn’t allowed here during her trial- surely with this much questioning, there should at least be a judicial review?

aibu?

If she is guilty after review then fair enough, but yet again convictions are being viewed as unsafe.

https://www.theguardian.com/uk-news/article/2024/jul/09/lucy-letby-evidence-experts-question

https://www.telegraph.co.uk/news/2024/07/09/lucy-letby-serial-killer-or-miscarriage-justice-victim/

AFAIK (diff jurisdiction) witness prep is allowed but coaching isn't. I'm not saying counsel should coach witnesses but they can certainly evaluate whether their expert opinion as professed in reports or witness prep will help or hinder their case, and if the answer is hinder, not call them.

Certainly that is how I run my matters, and the UK bar council witness prep guide indicates that the same is permitted. If you have knowledge in this area though, I am happy to be corrected.

lol. Sure, that's why.

I mean that’s certainly how it seems to me? You seem to think I am “unhinged” for questioning the performance of the defence in this case.

I am not a lawyer (although I am certainly not uneducated about how the justice system works as you accused), however, there are many many lawyers / barristers/ legal experts who have spoken out about their concerns about the defence’s performance in this case, especially because (but not only because) of their failure to put any expert witness on the stand to challenge Dewi Evan’s deeply problematic testimony.

Ineffective assistance by the defence is a major reason why miscarriages of justice do happen; often defence lawyers - even really good ones - are ineffective because of their failure to properly challenge expert testimony , because , for example, they themselves haven’t fully grasped the scientific arguments at stake. This isn’t wild conspiracy theory it’s just the ordinary workings of fallible humans and institutions.

This has been covered.

It’s very weird to discuss this with people who have zero grasp of the science on which the case rests.

We’re coming to the end of the thread. But what really interested me about this case is the use/abuse of science in court. I’m interested in the implications going forward. Dr Phil Hammond made some good points in his article. See photo attachment below.

Here is a further Tweet by Hammond on the same issue:

1. Complex medical and statistical evidence was sent for expert peer review by the CPS prior to the trial, for a thorough and balanced assessment. If the trial went ahead, this would form part of the evidence. (@DebbieKennett
suggested this). It would be expensive, but not nearly as expensive as getting the science and statistics wrong.

2. Expert witnesses should give evidence in a panel to the court, rather than being paid for and coached by one side or the other, which risks biasing their independence. 3. Where this is not possible, experts from either side could meet beforehand and settle areas of agreement and disagreement (this often happens), then take the oath and stand together, to have a more reasoned analysis of the science and statistics without the fiercely adversarial exaggeration of the evidence that currently often happens. This is known as "hot tubbing", and is rare, but an improvement on the current system. https://x.com/drphilhammond

Yes you can subpoena a witness, but isn’t that a risky strategy unless you need them to testify on some very specific/ objective point? If you compel someone to testify you potentially have a hostile or at least reluctant, witness on the stand, no?

The witness that pp was referring to was going to be a character witness for Lucy. She claims she was advised by the hospital not to testify as it might “affect her career” so she withdrew. Not sure it would have helped the defence to force her?

Since the trial many NHS doctors and nurses have spoken to the press anonymously. They have expressed their fear of being named; theres been much discussion of a high profile case of a doctor who was struck off the register for testifying for the defence in a child abuse case (she later appealed this).

Miscarriages of justice happen for a plethora of reason; ineffective defence is the easy answer but often it comes down to factors such as:

1. scientific evidence upheld as incontrovertible at the time is later bunked or found to have serious weaknesses- this is a massive one
2. prosecution unethically withholds relevant information that would damage their case (this is unlawful)
3. public opinion colours the jury and cannot be overcome despite direction otherwise
4. at the time of preparing the case for trial, relevant expert witnesses do not come forward or say they have other commitments because they're not interested, (but then after accept talking head and opinion slots opining on the verdict which brings increased popularity and fame)
5. the defendant is simply unlucky enough to seem unlikeable (or has identity factors which lead to discrimination such as race, socioeconomic standards) and cannot provide a solid defence just because they never expected to need to
6. the defence is incompetent- extremely unlikely when it's a KC aka someone recognised by their peers and the judiciary as being exceptionally competent
7. the relevant law is misunderstood or mksapplied

Any of these except (5) could- or could not have- applied. (6) is a possibility but relatively weak. That's why it seems fantastical and misguided that the lay opinion is focusing in on (6).

This was a good faith explanation, I am not being annoying for the sake of it. I truly hope it helps some people understand.

@Yazzi

Miscarriages of justice happen for a plethora of reason; ineffective defence is the easy answer but often it comes down to factors such as:

1. scientific evidence upheld as incontrovertible at the time is later bunked or found to have serious weaknesses- this is a massive one

The point that you seem to be missing is that it seems that the scientific evidence should have been debunked (or attempted to have been) and the serious weaknesses shown at the actual trial. And there was no attempt to, which is why people think that there was an inadequate defence.

As soon as the reporting restrictions were lifted it became very clear that quite a few medical experts were disputing the science put forward, it's not a case of 10/20 years later there are new scientific discoveries, at the time of the trial there was already people who would have been able to point out the weaknesses.

But yet those experts either weren't found, or spoken to or used.

We know that they wanted to bring forward evidence from Dr Shoo Lee for the appeal, Why did they not try to use him in the trial? We also know that for the appeal he hadn't looked at the babies clinical notes, but we don't know why that was...Did the defence not ask him to? Or did he say he'd only do a report and wouldn't look at the files? There are so many unanswered questions.

Miscarriages of justice are usually a combination of factors.

Not sure why you’re so preoccupied with 6. The criticisms of the weak defence are coming as much from within the legal community as without. But the prosecution has been criticised too. And the police.

Myers did a reasonable job with what he had. The solicitor was a local one who may conceivably been out of his depth on a trial of this scale and scientific complexity. For whatever reason the defence failed to get a good grip on the science, which led to a failure to challenge the air embolism and insulin theories among other things.

If you think you’re the only defensive barrister on the thread, you’re actually the second.

Some of the scientific evidence presented by the prosecution was junk - so they didn’t cover themselves in glory either and the misuse of stats is now legendary.

The problem really is the limitation of the court of trying this type of case.

Yes of course miscarriages of justice happen for all those reasons. No one suggested otherwise . But we are discussing the details of this particular case.

The concern with this case is the scientific evidence that was presented in court was deeply flawed.

No doubt in this case no. 3 on your list was also a factor (given the media reporting) , but perhaps this could have been overcome if the scientific evidence had been properly challenged in court. It certainly couldn’t be overcome without it.

We have no reason to suspect no 2. on your list was at play here.

As for 1. - This is not a case of the science was “incontrovertible at the time” and since then it has been debunked. What is known about the medical and statistical evidence the now , was known then, it just wasn’t presented at trial.

Why?

Perhaps no defence witnesses wanted to come forward . Why? I don’t find “disinterest” (your no 4.) very likely, since the trial was huge at the time. Fear of reputation seems much more likely to me and in keeping with what doctors and nurses have shared in the press since the trial.

No 5) as you say makes little sense in this case.

No 7) I am not a legal expert but have not heard anyone make a case for this.

So here we are with no 6)… what we do know is that LL had no expert witness to testify in her defence except a plumber. This is an objective fact. The result of this is that the jury only heard the prosecution witness’s interpretation of the medical evidence , (and erroneous statistical inferences were used by the prosecution unchallenged). We also know that many credible expert witnesses have come out since and poked any number of holes in this evidence as it was presented to the jury.

so not fantastical or misguided at all to be asking questions around 6) when you consider the context and particulars of this case.

I have to say you come across as speaking from a position of some arrogance (which you seem to think is justified because you are a criminal barrister), yet I do wonder if you have much knowledge of the details of this particular case and why people are questioning the integrity of the conviction?

yet I do wonder if you have much knowledge of the details of this particular case and why people are questioning the integrity of the conviction?

It doesn’t sound like it.

The courts might have limitations but if this does end up being a miscarriage of justice then it is absolutely appalling that it was allowed to happen in 2023.

There should have been more of an attempt to get to the actual facts before bringing it to court.

It would be very interesting to see the CPS process here. Would the fact finding have been more robust if they had been investigating gross negligence manslaughter?
https://www.cps.gov.uk/legal-guidance/gross-negligence-manslaughter#:~:text=The%20offence%20of%20gross%20negligence%20manslaughter%20requires%20breach%20of%20an,so%20bad%20in%20all%20the
Experts and Process
In all cases of medical manslaughter, the evidence of medical expert/s will be required. There will most usually be a pathologist report and expert evidence will be required concerning whether the actions or omissions of the medical professional caused the victim's death.

If causation can be proved, medical evidence will be needed to provide an opinion on how far below the standard of the reasonable medical professional the conduct fell. Sometimes the advice of several experts is required on different aspects of the case.

While considerable weight will be attached to the expert evidence, which will inform and assist the making of the decision in any case, the decision as to prosecution and whether the evidential test is met is ultimately one for the independent prosecutor.

Experts are required to have suitable and relevant expertise in their area of practice and will make a declaration as to their independence and expertise when they provide their reports.

The prosecutor will provide terms of reference for the expert outlining the elements of the offence of GNM and will address any aspects of the individual case that require particular expert advice.

In a case where the prosecutor considers that the evidence indicates that the threshold for a prosecution of GNM may be reached, senior counsel will be instructed to advise.

In cases where a charging decision of GNM is under consideration, the prosecutor and counsel will meet with the expert/s to discuss the report/s and the evidential test for GNM. Notes will be taken of any such meeting and any information which meets the disclosure test will be provided to the defence if a prosecution is commenced.

All review decisions in cases of gross negligence manslaughter are made by specialist prosecutors or senior specialist prosecutors in Special Crime Division and require the approval of the Head of the relevant Unit and final authorisation by the Deputy Head of Division.

Actually many lawyers will tell you that getting good (by which we self interestedly mean useful) expert evidence can be a challenge. The case was huge while happening but witness lists are lined up prior to trial.

It is quite common for experts to realise that giving evidence comes with risks (of being publicly critiqued) and would rather be the public critic, after the fact.

Certainly it is more common for it to be difficult to line up useful experts than for a KC to be incompetent.

Was one of these factors, the other, or something else entirely here? Or none? I don't know. None of us do.

I am sorry for sounding arrogant. I suppose I felt impatient with the degree of absolute confidence that opinions based- at best- on only degrees of knowledge are being expressed

No-one has actually said Myers was incompetent. I don’t think that.

It is quite common for experts to realise that giving evidence comes with risks (of being publicly critiqued) and would rather be the public critic, after the fact.

oh I totally agree, and I have always personally believed that this was most likely the prevailing issue in this case- that experts were unwilling to put their neck on the line for the defence. At the same time, given what we know now, I do also suspect its very likely that the defence could have done more/ better with what was available.

But as you say, none of us know what happened here, all we have are questions. I do really hope that more answers will be forthcoming soon enough..

(And no worries on tone, these social media debates can be infuriating 🫣)

The courts might have limitations but if this does end up being a miscarriage of justice then it is absolutely appalling that it was allowed to happen in 2023.
@kkloo Lucy Letby and miscarriage of justice don't belong in the same sentence. Any hope of that being the case evaporated as soon as the trial started.

And that, right there, that opinion is the crux of the matter. The attitude that merely being on trial indicates guilt. Never mind the quality of the evidence or whether due process is properly followed, she's guilty.

Imagine for one moment if you were on trial and you knew you were innocent but everyone involved in your prosecution "knew" you were guilty and allowed enough information into the public domain for your guilt to be certain in the eyes of the majority even before the evidence is revealed. Imagine you have faith that the evidence can be challenged but it's so complex most people don't know how to. Imagine your case is so high profile with potentially catastrophic ramifications for a vast number of people whose jobs and reputations would be on the line if you were found to be innocent.

Because this is a position that anyone could end up in, and this is why it should be examined.

The bar for the CPS to prosecute is high, particularly for a massively lengthy and expensive trial like Letby’s.

But there has to be an acknowledgment that miscarriages of justice happen

The fact that the CPS decided to prosecute and the a jury convicted her does not necessarily mean she won't later (and maybe much later) be found to be innocent.

Sally Clark, Angela Cannings and Donna Anthony were tried and convicted because of one expert witness who was wrong and was later struck off the medical register

Sam Hallam 7 years for a murder he didn't commit and was not even there, Andrew Malkinson 17 years for a rape that was committed by another man whose DNA was on the victims clothing, Stefan Kizko 16 years for a murder done by another man, the Birmingham 6, Guildford 4 and the Maguires

And on and on

Exactiy! The blind falth in the all important never make a mistake cps <when we know they have in the past, plenty of times as you list> plus the ability of juries who can be made up of halfwits for all we know is crazy.

I repeat she may well be guilty but the evidence seems debatable at best. So many experts are voicing their concerns this isn't just 'armchair detectives'.

Of course it’s armchair detectives!

First jury found her guilty of enough of the offences to warrant her whole life sentences, but not enough of the offences to convince me they didn't consider the evidence for each one carefully and independently. She didn't have convincing grounds to appeal, and a second jury convicted her of Baby K on improved, different evidence from prosecution that in the previous trial had worked in her favour (came down to updated evidence on timings of another nurse swiping in to ward, rather than out as previous trial claimed.)

The stats have been widely circulated in the media, but they didn't form a big part of the trial. She was convicted on separate evidence for each baby. Plus, of course the chart everyone feels is dodgy is a chart of unexplained deaths, not all deaths. The events were identified as suspicious before any common factors were looked into. Deaths which had a clear cause were not included. That's the way round you'd want it, right?

She did very badly on the stand and from what Dr Hall has since said in the media, Myers correctly judged his experts would stand to lose more in the cross than they would help in direct examination so didn't call them.

There's a lot to be gained by reading the transcripts of the case here.

There has been plenty of actual medical experts who question the evidence. Plenty of legal experts too. You maybe haven't seen if you only read mumsnet but Google it it's all there readily available.

I don’t need to Google it. I followed all the media coverage of the trial and listened to the pod cast. The evidence was good enough for me. I’m not interested in the glory hunters who have crawled out of the woodwork.