The investigation into the actions of Lucy Letby, the trial process and medical experts continues to face scrutiny and criticism, much of it ill-informed and based on a very partial knowledge of the facts and totality of evidence presented at court and at the Court of Appeal.
This case has been rigorously and fairly tested through two juries and subsequently scrutinised by two sets of appeal court judges. Lucy Letby’s trial was one of the longest-running murder trials in British criminal history with the jury diligently carrying out their deliberations for more than 100 hours.
It followed an investigation that had been running for six years – an investigation like no other in scope, complexity and magnitude. It was a detailed and painstaking process by a team of almost 70 police officers and no stone was left unturned.
Preparing for the trial was a mammoth task with 32,000 pages of evidence being gathered and medical records running into thousands of pages being sifted through. Around 2,000 people were spoken to and almost 250 were identified as potential witnesses at trial.
As the case unfolded, multiple medical experts – specialising in areas of paediatric radiology, paediatric pathology, haematology, paediatric neurology and paediatric endocrinology and two main medical experts (consultant paediatricians) – were enlisted to ensure that we carried out as thorough an investigation as possible.
All are highly regarded in their area of expertise and were cross-examined whilst giving their evidence in court.
—Detective Superintendent Paul Hughes, Cheshire Police, 2 April 2025.
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Often spotted in the trenches as the keyboard war rages over Ms. Letby’s conviction — I have seen action — are variations on this argument:
You were not at the trial. Unless you sat through ten months of evidence — unless you saw everything the jury saw, and looked into the whites of the defendant’s eyes — which were yellow, come to think of it — you simply cannot know the facts and cannot form a useful opinion on her guilt. It is beyond you.
Advanced by those who also were not at the trial and who, by their own logic, have no better idea of what went on, it really amounts to saying:
“I find the trial’s outcome agreeable and wish to entertain no further debate about it.”
Impermeability
Like all Anglo-Saxon criminal trials, Ms. Letby’s was conducted according to arcane rules: common law, statute, the rules of criminal procedure, the law of evidence, and long established (if roundly criticised) principles governing the use of expert witnesses.
These institutions are meant to, and generally do, vouchsafe justice, but are not infallible. Miscarriages of justice happen. Even outrageous ones.
From this tremendous melée — the evidence-in-chief, cross-examination, submission, objection and each fork-tongued duel between barrister and witness — we expect 12 random citizens to form between them an impression sure enough to condemn a defendant — but yet at the same time so mystic and ineffable that it cannot later be explained, interrogated or rationalised. The verdict passes intractably into the record, a brute ontological fact, immune to later mortal analysis.
To the question:
How on Earth did she get convicted?
Comes the answer:
You had to be there.
The Holy Spirit was upon these jurors. It may have taken 22 days — if that in itself does not indicate reasonable doubt, what would? — but a guilty soul was justly condemned. Justice came, did its thing, and went. It left no trace. None can now make sense of it. We should not try. But still we must, all the same, quietly abide. The senior bar will be most discomported if we do not.
What the eye don’t see —
Acurious feature of this argument is how it depends on what we cannot see. There is a “truth”, but it is composed of darkness. We cannot apprehend it, so we cannot challenge it.
Before a verdict, explicitly, the criminal law does not work like this. Quite the opposite: it is all daylight and backlit halogen lamps. It is, to a fault, transparent, rational and unflinchingly evidence-based: facts are the be-all and end-all. But only the best kind of facts: there are strict rules governing what may be admitted.
All facts put before the court may be interrogated. Everything that can influence an outcome must lie on the surface. If it cannot be made to float — if it comprises innuendo or prejudice, it must be sponged from the record.
Nor may the opinions of those not in the jury box intrude. Juries, rarely, may be sequestered: news organisations are heavily constrained, on pain of contempt, in what they may say. They may only repeat, colourlessly, things the jury has heard. Social media makes this quite a nightmare.
In a criminal court, everything the jury hears is open to audit. Anything that is not is disallowed. Until the moment the jury withdraws to begin its deliberation, nothing in a criminal case can defy comprehension. Darkness is not allowed.
Until the jury retires.
Lucy Letby’s trial ran for nine months. The jury deliberated for a month after that. They had a colossal amount of data. Their task was Herculean. It was beyond any reasonable expectation we might have of twelve ordinary men and women.
They should be commended for their work, but it is not beyond our comprehension. It is not to say that the material grounds for their decision cannot now be summarised, analysed or criticised.
Indeed: that is the very trial process: both prosecution and defence summarise their positions and present them to the jury at closing. Then the judge sums that all up. That took the best part of a month, too.
So if we who were not in court ask the question now:
How on Earth did she get convicted?
Someone ought to be able to give sensible answer.
At the time of the original trial, in the public’s mind, there was a sensible answer. It went something like this:
It was proven in court:
These are good grounds, if true, but they have been under sustained attack at least since Rachel Aviv’s New Yorker article of 13 May 2024 brought concerns about the convictions into the mainstream. The concerns were already there: a hardy band of campaigners — “Poundshop Poirots” in Dr. Evans’ phrase, “a strange band of misfits and ghouls” in Liz Hull’s — had been questioning the trial rationale since long before its verdict.
The New Yorker piece created quite the brouhaha: indeed that is the first time I became aware there were any questions about the verdict.
At first, senior barristers came out to defend the system. They were dismissive of the concerns of those not steeped like an old tea-bag in British criminal procedure.
But the Poundshop Poirots were not deterred. It turned out not all were “fanatics and pseudo-scientists” as Liz Hull’s piece in the Daily Mail described them: quite a few were recognised professionals in law, medicine and statistics, some with significant experience in miscarriage of justice cases.
The brouhaha carried on. It is still going, to this day.
After more than a year of sustained interrogation by dozens of world-leading experts — see panel — as well as the misfits and weirdoes of Liz Hull’s imagining; of examination of trial transcripts, court reports, medical reports, judgments and appeal decisions the grounds on which Ms. Letby was convicted do not seem to hold much water.
What is just is significant is this: in the 15-month period since the New Yorker article, despite an equally active group of internet sleuths, journalists and advocates defending the verdicts, not one new fact or opinion has emerged that unequivocally supports the facts and opinions the prosecution led at trial. The prosecution has its stout supporters, but beyond the original trial participants, none are medical experts, statisticians or lawyers. Their support is fully limited to defending the outcome of the actual trial as it was litigated. There is no outside support for the wider proposition that Ms. Letby actually murdered these infants.
The defence is, in other words, strikingly formalistic: it is not a defence of an abstract question of substantive justice — is an innocent woman in prison — but of the formal qualities of a specific procedure — did her conviction adhere to the posited formal requirements of criminal procedure?
But justice not only has to be seen to be done. It has to actually be done.
Now: even if she were innocent, you would expect some uncomfortable material to emerge about Ms. Letby — no-one is perfect, after all. But it has not. There have been hints and intimations of further charges but they have notably lacked detail and were accompanied by no fresh evidence or opinion.
Since the verdict was handed down, those supporting it have done so purely on the material presented at trial. They have rejected out of hand all subsequent commentary, however qualified, as if only the blast furnace of trial scrutiny can give evidence the necessary tempering and logical rigidity to stand as fact: nothing less, however carefully articulated or eminently authored, can match. Those who were not present cannot even understand.
So the refrain still rings out:
You had to be there.
Now, to be sure: journalists can overplay their hands. We are in the age of clickbait. One so minded could sift through the record, cherry-picking facts from quotidian contexts to make a sensational story-line. One could blow trifling discrepancies out of all proportion. One could confect the wholly false idea of an injustice. But this is hardly the New Yorker’s style.
But when the reputation of the British criminal justice system is in the, er, dock, it is right to pause for breath, and say something trite, like:
“Extraordinary claims require extraordinary evidence”.
They certainly do.
Extraordinary evidence
But then the extraordinary evidence started rolling in. To their credit, the blustering KCs walked back their early essays. One, having at first declared himself satisfied with the conviction, openly pondered whether we had another “appalling vista” on our hands.
Statisticians picked up on the Texas sharpshooter aspects: The New Yorker was right: the spreadsheet was assembled to advocate for the theory that Ms. Letby was the perpetrator: the CPS appeared to concede as much in court.
Lawyers questioned the operation of the expert evidence rules: the weakness under cross-examination of the prosecution witness and the strange absence of any defence experts.
Forensic scientists challenged the insulin evidence.
Those few with expertise in the field roundly debunked the prosecution expert’s evidence on air embolus, which fundamentally misunderstood the literature he purported to rely on.
A degree of frantic dissembling came back over the trenches — the case didn’t hinge on statistics or the evidence of a single expert, it was claimed — but these deflections came largely from journalists, not credentialised experts. Few engaged with the meat of the criticisms being aired against the convictions, other than to say “these things have not been tested in court”.
In matters of great public debate — at least, where there is an arguable case — we are used to experts lining up on either side to make their case. Even though the prosecution had succeeded at first instance, that did not happen here. The crown’s actual expert witnesses stood their ground, doggedly refusing to budge on any of their conclusions, even if their reasoning changed as needed to suit the emerging fact patterns.
But no new experts, not already involved, came forward to defend the prosecution. This was despite energetic efforts from contrarian news sources — notably Private Eye — who have repeatedly appealed for experts to corroborate the views presented in evidence to support what would, presumably, be an easy status quo. None have.
Now, since the NHS is the largest employer of medical expertise in the UK and the Crown Prosecution Service the largest user of professional expert evidence, we might put this down to professional courtesy, or even self-interest — a reluctance to bite the hand that feeds, so to speak — were it not for the fact that medical experts from around the planet were queueing up to challenge the CPS and NHS narrative, free of charge. It was just no one was lining up to support it.
I have been running an informal log: see the panel. Over fifty well-recognised experts in their respective fields of neonatology, endocrinology, statistics, forensics and law have expressed misgivings about the outcome of this trial. Outside actual witnesses, just two have publicly supported the verdict.
Are all these international experts labouring under a delusion? Have they been misled by nefarious interests into expressing formal, reputation-jeopardising public doubt — and in which case, whose, how and most importantly why? Who has anything to gain from guilelessly advancing the interests of a convicted serial killer?
Again, the same question: why is it that no-one can explain what is so compelling about this verdict?
“You weren’t there, so you can’t understand” really will not do.
— the eye can’t critique
Justice has, formally, been done. Convictions have been entered; barring the clement machinations of the Criminal Cases Review Commission — don’t hold your breath — appeal pathways are shut.
But convicted criminals do not go into an oubliette. Once they are sent down, the justice system is not excused from explaining itself. After the verdict, any citizen who asks should get a straight answer: how was the system satisfied the criminal did what the Crown alleged?
A criminal conviction cannot be some opaque, unspeakable, sacred mystery. It is the exact opposite of that: criminal justice is scrupulously analytical. The prosecution must painstakingly prove out every point in its chain of logic. It must all be disclosed in advance, laid out before the court, and opened to the defence, for its unlimited scrutiny.
It is often said that the burden of proof inverts upon conviction: the Crown’s burden is satisfied; now the defence must discharge a burden to overturn a conviction. And so it must, but only to the balance of probabilities — though if a defendant wants compensation for her false imprisonment, she must prove her innocence beyond reasonable doubt.
Never mind compensation: it is hard enough just to get out of clink. The Court of Appeal asks more that just a better job of stating your case: if no procedural irregularity or legal error, you cannot just have another go at explaining why the Crown’s evidence is unreliable. The jury has decided. You must present new evidence, not reasonably available at trial, to shine a new light, that the Court is persuaded might have changed the jury’s mind.
While its appeal powers were crafted widely, the Court of Appeal has consistently interpreted them narrowly, creating binding precedents for itself. It will not do that you didn’t introduce evidence first time around: you must show that you couldn’t have. In this way, a defendant is beholden to her counsel’s competence and strategy.
It is said that there are sound policy reasons for this: the law must dispense certainty. A vital aspect of criminal justice is finality. We do not want vexatious criminal ne’er-do-wells cluttering the system with spurious appeals.
Indeed, no: but it is different if they are, in fact, innocent. If you have misconfigured your frontline system to routinely convict law-abiding citizens, the least you can do is install a quick and reliable “undo” feature. However you look at it, statistically, the justice system is designed to convict the occasional innocent person. Not even by accident.
The criminal justice system has evolved a highly formalised methodology. More than most institutions in modern life, it stands on ceremony. But as all formalised systems must, it has escape valves. It can deliver discretionary clemency where its formal systems have created a manifestly perverse result. It is a discretion the Court of Appeal is notoriously reluctant to use: the idea that the sound operation of criminal procedure, in a high-profile case like this, could produce a manifestly perverse result is a “vista” too appalling to countenance.
Senior barristers recoil at the suggestion that British justice could fail that badly. But disdain cannot obscure the fact that recently, it has failed this badly. Repeatedly. Just ask 900 odd sub-postmasters.
All the same, the defence must make a compelling case. Whereas the prosecution may now make wan allusions to the unknowable genius of a bygone trial, if it wants any traction, the defence must, at this stage present detailed, specific and compelling arguments.
Leaving aside for a moment the formal rules governing whether the criminal system is prepared to hear them, plainly, it does.
Defence arguments are clear
In sharp contrast to those who would defend the convictions, Ms. Letby’s defence team has been garrulous. There have been interminable press conferences. Their arguments — many of them made “in the alternative”, as lawyers like to do, affording themselves multiple, sometimes contradictory, shots at the same target — have been published in tremendous detail. The defence has invited detailed rebuttal — some have, rather feebly, tried to provide it. Ms. Letby’s new barrister has shipped no small amount of professional criticism from his fellow barristers, not for being somehow covert, but for not being covert enough. Mr. McDonald is seen as being too forthright. Barristers, it is felt, should not court the media. As far as some members of the bar are concerned, it is just not cricket. But with a Court of Appeal as hostile to defendants as this one is, one can hardly blame him for thinking outside the box.
The same goes for all the “strange band of misfits and ghouls” who have questioned the safety of the conviction. Their arguments are, by nature, public, detailed — way too detailed in many cases — specific, articulated, and anxious for attention: that is so say, welcoming of scrutiny and good-faith challenge.
There has not been much. Credible challenges that have come back have been either formal in nature: “the rules have been followed, she had her chance, alea iacta est,” and so on — or somehow mystical: there are things that resist intellectual inquiry and must not be disturbed. Some things should not be said. Some questions should not be asked.
This is especially perplexing since, generally, it is the prosecution who must make the intellectual running. The burden of proof lies upon the Crown, not the defence. A prosecutor should be better placed to spell out the ingredients of her case than a defender is to rebut it in the abstract. How do you prove a negative?
That the burden reverses on conviction does not alter this fact.
If the evidence was so compelling, and the Crown’s case so immaculate, you would think, someone would be able to explain it.
The defence is well able to explain itself: its spokespeople can scarcely shut up. There are any number of erudite criticisms of the law, the application of evidence, the use of statistics, of the crown witnesses’ speculative diagnoses, available in the public domain.
So where is the patient exposition of the Crown’s position: sure: the Crown Prosecution Service might not be minded to provide it, but someone?
“If you weren’t at the trial, you can’t know”.
This is a kind of “emergence” argument. It is routinely run, ironically enough, by people who also were not at the trial. How can they know any better, but by blind faith that the system will work as billed?
If this is right then the outcome of no trial can ever be gainsaid, all appeals should be forbidden, and the jury process should be sanctified as some ineffable, inexplicable conveyance of mystical verities by means of holy procedure, to be hereafter obeyed.
That is not how things work. Trials are reported, there are sequences, there are critical phases, points of sharp drama and afternoons of procedural guff. Witnesses make mistakes and can suffer from cognitive bias. Jurors switch off, or are illogical. Counsel can underperform, or focus their case on a set of issues that don’t resonate with the jury.
We are entitled as citizens to know about these things. We are entitled to interrogate them. We are entitled to be satisfied about them.
Above all, justice, before and after conviction, should remain transparent. If it is really true that you can’t possibly know unless you were in the jury box, then that is a profoundly unsatisfactory thing in itself.
Jurors may be selected from the electoral role: they are not the electorate’s delegates. Seeing how little skin they have in the game — by definition, jurors have none — jury decisions should be as accountable to the rest of us as any are other actions of state to oversight, scrutiny and review.
Shouldn’t they?
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