Was Lucy Letby Doomed To Get An Unfair Trial?

Written by Gloria Moss PhD FCIPD on November 11, 2024. Posted in Current News

The question posed here is not a new one. The Roman poet, Juvenal, asked “Quis custodiet ipsos custodies”(book 2, Satire VI, lines 347–348), in other words  “who guards the guards”? The question could be asked of high ranking political leaders, heads of organisations and senior members of the judiciary

From a practical point of view, you can imagine that those in powerful positions are sources of patronage and so cannot easily be crossed.

Imagine taking a Professor or teacher to task for making an error in their marking and ask yourself whether you would still be a favoured student after that, even if right was on your side?

So, with talk in the media of potential miscarriages of justice, whether in the Jill Dando murder case (Barry George wrongly accused), the Postmasters scandal or the Lucy Letby case, we can well pose the question.

Will the Justice system allow itself to be held to account?

When promotion rests on reputation and possibly membership of certain groupings, whether work-related or otherwise, the holding to account of which Juvenal speaks can only come from people who are remote from the matter being investigated.

So, asking a head teacher to adjudicate on the issue of the teacher’s marking might be difficult if he/ she had played a part in their recruitment since admitting a failure on the part of the teacher is tantamount to accepting a deficiency in their professional judgement.

And, in a  tyrannical society, anyone questioning the workings of the establishment could be  labelled a dissident and worthy of punishment.

Still, Juvenal’s question is several hundred years old and requires an answer.  Let us play devil’s advocate and consider the extent to which checks and balances are operating in the current British judicial system.

We will start with the Criminal Cases Review Commission (CCRC), a body set up in March 1997 to review cases in which people questioned their convictions or sentences, in other words potential miscarriages of justice. 

This body claims on its website to be ‘completely independent’ by dint of not working for the government, courts, police, or the prosecution.

Does it have the power to stand guard over judges and their decisions?   Three points stand out immediately.

Appointment of commissioners (those looking at cases) are made on the recommendation of the Prime Minister, so are political appointments. 

Secondly, of seven current commissioners, three are barristers and one a solicitor, all tied into the legal system with loyalties to their regulatory bodies (be it the Bar Council or the Solicitors Regulatory Authority). 

Can these people really act independently, for example taking senior members of their profession to task?

Thirdly, the new Chair of the CCRC, Helen Pitcher OBE, is also the chair of the Judicial Appointments Committee, the body that makes judicial appointments. 

This puts her in the position of the headteacher, with conflicted interest when it comes to criticising staff that he/ she has appointed.

The head teacher might feel compromised in fact even were those appointees to be working with senior people that they had not actually appointed themselves but whose performance was open to question.  

For the head teacher had allowed the senior appointees to remain in post.

This article is not the first to question the impartiality of the CCRC since Hannah Quirk and Jon Robins have highlighted the compromising effect of having a single person occupy the positions of Chair of the CCRC as well as of the Judicial Appointments Committee.

Any claim to independence disappears at this point, even if Helen Pitcher declares (as she did to the Justice Select Committee) that there is no “potential conflict” between the two roles.   

As the bestselling New York Times author, Michelle Hodkin has said, ‘Thinking something does not make it true’.

Are we to believe that Britain is so starved of talent that the same person must occupy the role both of Chair of the Judicial Appointments Committee and also that of the CCRC?

Her background shows one focused strongly on coaching and if this considered a relevant skill, then many other people would be available from across Britain.

The CCRC is the sole institution in Britain vested with the responsibility to question decisions by the judicial establishment. What is more, the budget of the CCRC has been reduced from £9.24 in 2004 to £6m in 2023.

If we factor in inflation, this represents a decline of around 250 percent in real term.

What with the conflict of interests and decline in funding, there would appear to be little political appetite in Britain to create an effective check against judicial overreach.

The Sally Clarke case

In 1999, solicitor Sally Clarke was arrested for the murder of her two sons who had died in infanthood.

She was sentenced to life imprisonment by Chester Crown Court and released following the second of two appeals (the first one failed) after her husband presented evidence to the CCRC proving that the death of one of her two sons (Harry) was brought about by a brain infection caused by the presence of the bacterium Staphylococcus aureus in multiple sites including in his cerebro-spinal fluid.

It transpired that although this evidence was known to the Home Office pathologist, Dr Alan Williams, working for the prosecution team, withheld this vital  information during the trial.

Sally Clarke’s husband, Steve Clarke, a solicitor and previously a Partner in a law firm, subsequently sought to lodge a complaint concerning the conduct of Robin Spencer, the leading counsel for the prosecution team.

A Bar Council-appointed QC prepared a charge sheet containing eight acts or omissions prejudicial to the administration of justice, but a high court judge, Mr Justice McKinnon, struck out the complaints.

We learn about this in the book on the case, “Stolen Innocence” (2004) where the author, John Batt records Justice McKinnon as stating that “with regard to the standard of proof that is required for a charge of Professional Misconduct, there was no real prospect of success”.

The author, John Bates adds at this point that “The Reader will draw his own conclusions as to what , if anything, this says about current standards for conducting criminal prosecutions” (p.476).

The Lucy Letby case

Between October 2022 and August 2023, what is believed to be the longest murder trial in British legal history took place in Manchester Crown Court.

The judge in the case was Justice Goss, a man who became a judge of the High Court of Justice in 20214 and then presided over the trial of Carl Beech in 2019, sentencing him upon conviction to 18 years’ imprisonment for the fabrication (allegedly) of claims that high-ranking members of the British establishment within and beyond Westminster were guilty of child rape and murder.

The trial of Lucy Letby ended with Justice Goss sentencing her to life imprisonment on seven charges of murder and the seven of attempted murder (including two counts of attempted murder against one child), totalling 14 whole life orders.

In his summing up, he stated that:

‘”There was a malevolence bordering on sadism in your actions’ even though no evidence has been presented, assuming the deaths to have been brought about by the nurse, as to what might have been her motives”.

His language in his summing up was consistently strong, even though it has been acknowledged in the statement issued to justify her unsuccessful appeal (it is stated there in para 4 that “the case was a circumstantial one”).

Here are excerpts from his concluding remarks (bold added to show the emphatic nature of the language):

“You acted in a way that was completely contrary to the normal human instincts of nurturing and caring for babies and in gross breach of the trust that all citizens place in those who work in the medical and caring professions.

“The babies you harmed were born prematurely and some were at risk of not surviving but in each case you deliberately harmed them, intending to kill them. There was premeditation, calculation and cunning in your actions.”

“The cruelty and calculation of your actions were truly horrific.”  ….., a case of very exceptional circumstances”   “You killed seven fragile babies and attempted to kill six others. All were extremely vulnerable.”

“This was a cruel, calculated and cynical campaign of child murder”(alliterative effects add to the power here)….  There was a deep malevolence bordering on sadism in your actions.”

Given the doubts that have surfaced from a large numbers of experts both in Britain (twenty four in total expert in medical data, Prof Jane Hutton of Warwick University and Emeritus professor of Statistics at Cambridge, Philip Dawid) and overseas, whether scientists, statisticians, neonatal experts, nurses senior journalists, legal voices and even former Cabinet Ministers, it is perhaps surprising to see this degree of certainty.

Surprising also, given this certainty, to see that Justice Goss directed the jury at the end of the retrial of the Baby K case that certainties and motives were of secondary importance.

Here, for example, is some of the advice that he offered the jury:

“You do not have to resolve every conflict in the evidence and be sure about every point that has been raised or try to determine exactly what happened.

You are not detectives and, you may think, it would be a remarkable and exceptional case in which a jury could say we know everything about what happened in any case.

Nor do you have to be sure of any motive or motives. Motives for criminal behaviour are sometimes complex and not always clear.

You only have to make decisions on those matters that will enable you to say whether the defendant is guilty or not.”

So, it seems that guilt or innocence could, according to the judge, be determined even in the absence of specific certainties.

Given the weight of public expert opinion and what could, arguably, be seen as contradictory lines of thinking on the part of the judge (an also errors of judgement according to Letby and her team) it is less surprising that the accused lodged an application to appeal the judgement.

Four failures were put forward, lleged, all relating to actions by the judge:

1. he was wrong not to direct the jury to disregard the evidence given by Dr Dewi Evans; and was wrong to admit further evidence from him (ground 1);
2. he was wrong to reject the submission of no case to answer made by the defence at the conclusion of the prosecution case (ground 2);
3. he was wrong to direct the jury that they did not have to be sure of the precise harmful act or acts on any given count on the indictment (ground 3);
4. he did not take the correct course in investigating a potential jury irregularity arising out of a complaint first made to the court on 2 August 2023 (ground 4).

All four of these grounds were dismissed at the hearing to decide whether to take the case to appeal and as a consequence, Lucy Letby’s application for leave to appeal was rejected.

A little reported fact is that a criminal appeal goes to a single judge who makes a decision on the papers whether to let the applicant argue the case at a hearing.

In Letby’s case, that single judge was Sir Robin Spencer, and he turned down her appeal.  What do we know about Sir Robin?

After becoming a QC in 1999,  he became a High Court Judge, leading the prosecution team in the case of Sally Clarke that we considered earlier.  As we saw, the prosecution case won the day and Sally was found guilty of murder and sentenced to life imprisonment for the murder of her two baby sons.

Part of the prosecution’s case relied on flawed statistical evidence presented by paediatrician Roy Meadow, who testified that the chance of two children from an affluent family suffering SIDS was 1 in 73 million.

Meadow’s evidence was subsequently criticised by the Royal Statistical Society which stated that there was no statistical basis for Meadow’s claim, and voiced its concern at the “misuse of statistics in the courts”.

We have also seen how vital evidence concerning the presence of a brain infection in one of Sally Clarke’s sons was not revealed to the court by a member of Sir Robin’s Prosecution team.

In the second appeal, when finally this evidence was made public, the sentence was adjudged unsafe and overturned.

Fast forward to March 2023 when, following his retirement as a high court judge, he sat in  the Court of Appeal (Criminal Division), hence his role as judge in deciding whether Letby’s case should proceed to appeal.

It may come as a surprise to the reader to learn of his involvement for two reasons.

Firstly, the prosecution case (which he led) in the Sally Clarke case was subsequently deemed to be unsafe.

Secondly, a public announcement of the decision that he made (namely not to allow Letby to appeal) was made on 24 May 2024 by three prominent judicial figures – Dame Victoria Sharp, Lord Justice Holroyde and Mrs Justice Lambert.

So it was easy for the public to be unaware of Sir Robin’s central role in disallowing an appeal by Letby.

Given their prominence, there is an abundance of information about these three éminence grises.  Dame Victoria Sharp is President of the King’s Bench Division, Deputy Head of Criminal Justice and a Lady Justice of Appeal.

Her twin brother, Richard Sharp, former investment banker, had been Chairman of the BBC until the end of 2023 when he was forced to resign over a potential conflict of interest concerning his intermediation in financial advice to the then Prime Minister, Boris Johnson.

In terms of the Lucy Letby appeal, Dame Victoria praised Sir Robin Spenser for his work on that, stating that:

“In our judgement, the judge handled the trial with exemplary skill and patience.

The various rulings challenged in this renewed application were swiftly delivered in every case, and were thoughtful, fair, comprehensive and correct.

Detailed reasons were given for refusing leave to appeal by the single judge.”

Lord Justice Holroyde is a Court of Appeal judge as well as a Privy Councillor while Mrs Justice Lambert, DBE, a High Court judge and former counsel to the Dame Janet Smith Review 2016 into Jimmy Saville’s reign of abuse at the BBC.

The review blamed a culture at the BBC that inhibited the reporting of abuse as well as loose sexual morals in the 1960s and 1970s.  It also downplayed the information available on his predatory activities in the decades prior to the report.

The reader may be asking whether, following the injustice visited on Sally Clarke, the lead prosecutor in that case should be given a key role in another case involving a woman, that of Lucy Letby.

Objections cannot be offered on professional grounds since, as we saw earlier, the charge sheet prepared against him (listing eight acts or omissions prejudicial to the administration of justice in Sally Clarke’s case) was – rightly or wrongly – struck out by a high court judge.

The fact that he was a member of the Bar Council meant that he curried favour amongst key decision-makers in the bar.

There is one question that one can legitimately ask.  Much of his career has been conducted in Chester, the very location in which the incidents at the Countess of Chester Hospital arose.

Thus, he was a Junior in Chester chambers, and then, following his time in London chambers, was Leader of the Wales and Chester Circuit in 2004-5.  Then in November 2023 he was appointed a Deputy Lieutenant of the county of Cheshire.

To this day, he is listed as a Deputy Lieutenant in Chester, the city in which he currently resides.

Voices concerned to answer Juvenal’s question: ‘Quis custodiet custodies ipsos’ may well ask whether someone with close ties to Chester could have the necessary independence to act as sole judge in an appeal case turning on actions in a local hospital.

In saying this, we are not passing comment on the medical, structural and human aspects of the case – these were explored in two earlier articles by the author in September 2023 – but merely the aspects concerning fair judicial process.

The question facing us concerns the extent to which those working within the judicial system can be called to account.

From the evidence seen so far, it would appear that the mechanisms in place are currently in freefall, with justice uncertain for those seeking to hold judges to account.

We will end by looking at one final case, older one, involving an appeal against a decision concerning the murder of Jill Dando.

The murders of Billie-Jo Jenkins and Jill Dando

In 1998, William Gage preside in the case against Siôn Jenkins, a former deputy headmaster, accused of battering to death his teenage foster-daughter Billie-Jo Jenkins. Gage urged the jury to have “clear heads and common sense” when considering the killing.

Jenkins was convicted and jailed for life, despite protesting his innocence. After two appeals and two retrials he was acquitted in February 2006.

The next year, on April 26, 1999, the television presenter and journalist Jill Dando was shot dead outside her home in west London.

Sir William Gage was the High Court judge picked to sit on the trial of the man charged with her murder; Barry George. He was convicted in 2001 at the Old Bailey and sentenced to life imprisonment.

George was released in 2007, after serving eight years following two appeals, his conviction was quashed.

In 2012, Barry George laid the blame for his conviction squarely on the judge, Justice Gage, in the case, alleging that:

1. The judge, Mr Justice Gage, should have ruled out the key identification evidence upon which the whole case against George was hinged

2. He was also wrong in directing the jury that the disputed micro-particle of firearms residue found in George’s jacket was capable of supporting the identification evidence.

Despite these allegations – and they could be justified or unjustified – the obituary  in The Times following Gage’s death in September 2023 stated, without so much as a hint of a contrary opinion, that ‘the success of the appeals turned on fresh evidence rather than errors by the trial judge’.

His obituary in The Telegraph likewise gave him a clean bill of health, describing him as a “a wise, humane and much respected High Court judge who was entrusted with some of the highest-profile murder trials of the day”.

The fact of the matter is that Barry, following eight years in prison, was acquitted on appeal.

He claimed to be the victim of a “miscarriage of justice” but a judge said in 2013 that he was “not innocent enough” to receive compensation from the State for lost earnings and wrongful imprisonment. 

Perhaps to do so would have impuned the judgement of the presiding judge, Gage, who in 2004 was appointed a privy counsellor.

Conclusion

Juvenal asks who will keep watch over the judges themselves and it would appear that the judiciary in 21C Britain are pretty impregnable. How can this change?  Perhaps the weight of public opinion will force a change and strengthening of the CCRC.

Perhaps there will be moves on the party of people to take themselves legally out of what appears to be a corrupt system, operating under Admiralty law.

We can be sure, however, that any society which imposes no checks on the actions of its judiciary will see itself engulfed by ever greater corruption.

This makes it vital for people to add their voices now to the growing groundswell of opinion questioning the workings of the judiciary.

And from that, seek to create a new and reformed judicial system.

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