Lucy Letby and miscarriages of justice: some words of caution
We should always be alert to the possibilities of miscarriages of justice
Over at his Substack, the leading legal commentator Joshua Rozenberg states:
“There’s something about the Lucy Letby case that attracts conspiracy theorists. Maybe the truth — that a former neonatal nurse has now been convicted of murdering seven babies and attempting to murder seven others at the Countess of Chester Hospital between 2015 and 2016 — is just too awful to comprehend.”
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The problem perhaps with this view is that miscarriages of justice do happen: indeed the criminal justice system of England and Wales is prone to miscarriages of justice.
This is not to say that the Letby case is a miscarriage of justice: I do not know, and I suspect almost everyone reading this post does not know.
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But here are two reasons why one should be cautious about being dismissive.
First: in the words of a practising criminal barrister (and excellent legal blogger) Matthew Scott:
I was brought up in the Birmingham of the 1970s and 1980s - and I recall campaigners for the innocence of the Birmingham Six being called “cranks” - and far, far worse.
But those campaigners were right - and those who derided them and insulted them were wrong.
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And second: as for the sentiment that some things are too awful to comprehend, one also has to remember the words of Lord Denning, an appeals judge who dismissed a civil claim from the Birmingham Six in 1980 (emphasis added):
“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.
“At the trial the same evidence about violence and threats was given all over again before the jury.
“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.
“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.
“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.
“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.
“It will take weeks and weeks.
“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.
“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.
“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .
“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.
“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.
“Whichever it is, the actions should be stopped.”
But the Birmingham Six were right - and Denning was wrong.
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Sometimes there are appalling vistas, and those appalling vistas can be in any direction.
The vistas can be of horrible crimes (as Rosenberg avers) or they can be of horrible miscarriages of justice (which appalled Denning).
In either case, one flinches.
But I would submit the better view - vista, even - is not to dismiss those concerned about miscarriage of justice in serious cases as “conspiracy theorists” or “cranks” or whatever, but to patiently see if they have any point.
If they do have a point, then nothing has been gained by dismissing them; and if they don’t have a point, nothing has been lost.
And for what it is worth, of course, most failings in the legal system do not need to be explained by conspiracies, but by cock-ups.
David,
Thanks for the mention. You are certainly not a conspiracy theorist and neither is Matthew Scott. But they do exist.
As you correctly say, none of us knows whether Letby was wrongly convicted. All we have to go on is the evidence.
I well remember the IRA bombings in England during the 1970s. I even had a visit from the police who were checking up on people, like me, who had moved house after one of the less well-known attacks.
And I helped cover the growing judicial acceptance towards the end of the 1980s that there had been some appalling miscarriages of justice. I was in the Court of Appeal (sitting at the Old Bailey) when the Birmingham Six were cleared in 1991 (see my book The Search for Justice, 1994).
Last month, in an interview with Chris Mullin for a forthcoming Archive on 4 documentary to mark the 50th anniversary of the Birmingham pub bombings, I read out Denning’s “appalling vista” quote to show that it was not only Denning who misjudged the reality but also Lord Lane CJ, among others.
The circumstances of these cases were very different. But of course the courts are not infallible, as Andrew Malkinson’s case demonstrates.
Fortunately, we have the Thirlwall inquiry gearing up for opening statements next month. Thirlwall LJ will not look directly at the safety of Letby’s convictions. But if the inquiry uncovers any other explanations for the murders and attempted murders of which Letby has been convicted, I am sure these will be considered by the Criminal Cases Review Commission and, if the commission thinks appropriate, by the Court of Appeal.
So your scepticism may well turn out to be justified. We shall see.
Joshua
What a pleasure it is to read rational arguments put forward in a rational manner. Bravo, gentlemen.