This blog post has been contributed by Ms Amber Marks, Module Convenor for Evidence.
In 2023 the Nurse Lucy Letby was convicted of killing 7 babies and attempting to kill 7 more at the hospital where she worked; offences for which has been labelled ‘the worst child serial killer in modern UK history’ and is serving 15 life terms in prison. The Court of Appeal has twice refused Nurse Letby leave to appeal against her convictions. Now the Criminal Cases Review Commission (CCRC) must decide whether to refer Letby’s case back to the Court of Appeal. It looks likely that the CCRC may well decide to do so given an international panel of renowned neonatal experts has unanimously concluded that the medical evidence does not support a murder conviction.
Lucy Letby’s case provides ample scope for reflecting on the workings of the criminal justice system, including the disturbingly intrusive media coverage of Letby’s arrest. What areas of evidence law might it inspire us to think more deeply about? The most obvious area is, of course, expert scientific evidence, as much of the prosecution evidence was medical. Suggestions from anonymous medical experts quoted in a recent podcast to the effect that the prosecution was “medically illiterate” will resonate with those of you familiar (from the Law Commission report and other readings listed in Chapter 10) with concerns expressed over the years about the legal system being ill equipped to handle scientific evidence. So will concerns that the trial judge appeared content to leave the question of the fitness of an expert (whose impartiality was questioned by the defence) for the jury to decide. The rules on expert evidence have been criticized for not doing more to ensure that expert evidence is unbiased, a criticism repeated by critics of Lucy Letby’s trial. You can read a short Special Report by Private Eye on the deficiencies in expert evidence and the Lucy Letby Trial.
Letby’s case invites us to think about other areas of evidence too. For example, what sort of role might character evidence play in a case of this sort? Bad character evidence is not meant to be used to bolster weak cases, but how good are judges at determining the strength of cases based almost entirely on medical evidence?
There is a little gem buried in the further reading (see 10.3 of the Module Guide) that might be of more interest to you as a result of thinking about this case, and that is the extract ‘Bad stats’ from Ben Goldacre’s Bad Science. The reason Goldacre’s extract is of interest to us now is because of troubling parallels between Lucy Letby’s case and the famous miscarriage of justice that took place in the Netherlands, in which paediatric nurse Lucia de Berk was wrongfully convicted of murder. Both nurses came to police attention because of what was deemed to be a higher number of deaths when they were on duty. This is some of what Goldacre had to say about that case:
“The case against Lucia was built on a suspicious pattern: there were 9 incidents on a ward where she worked, and Lucia was present for all of them. This could be suspicious, but it could be a random cluster, best illustrated by the “Texas Sharp Shooter” phenomenon: imagine I am stood in front of a wooden barn with a machine gun in each hand, maniacally firing off a thousand bullets into the wall. I remove my blindfold, walk up to the barn, find 3 bullets which are very close together, and carefully paint a target around them. Then I announce that I am an olympic standard rifleman.
This is plainly foolish. All across the world, nurses are working on wards, where patients die, and it is inevitable that on one ward, in one hospital, in one town, in one country, somewhere in the world, you will find one nurse who seems to be on a lot when patients die. It’s very unlikely that one particular prespecified person will win the lottery, but it’s inevitable that someone will win: we don’t suspect the winner of rigging the balls.
….Ah, but on the other hand, as the prosecution revealed at her trial, Lucia did like tarot. And she does sound a bit weird in her private diary, excerpts from which were read out. So she might have done it anyway….”
