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, O God of Earth and Altar
A mystery persists. What is it about this 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: 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: 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: 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?
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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]
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. 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, 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] — 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] 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]
In my view, for the little it is worth, this does not really hold water. 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, 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.
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