Lucy Letby and Comparative Law
When I recently wrote in the pages of this newsletter about unanimous jury verdicts, I sort of assumed that it would be a while before I returned to the topic.
After all, while the fact that a person can be convicted of serious crimes by a majority can lead to serious miscarriages of justice, there is little appetite for reform.
Nevertheless, the issue returned to centre stage on social media this week after The New Yorker published a longform article about the Lucy Letby case.
Letby, a former neonatal nurse, was convicted of murdering seven infant children and the attempted murder of six others. She was sentenced to life imprisonment.
The 34-year-old is looking to appeal her conviction and also faces a retrial on one of the counts next month due to a hung jury.
This ongoing nature of the criminal proceedings means that reporting restrictions are in place and so the New Yorker piece is not available to view online in the UK, although the print edition has not been redacted and is still available on the magazine’s app.
The Contempt of Court Act 1981 is used to outline the restrictions and tries to ensure that Letby is given a fair trial whereby jurors are not influenced by what they have read in the press.
The Conservative MP, David Davis, used parliamentary privilege to question this approach and claimed that the court order was “in defiance of open justice”.
Whether or not that is the case, the reality is that the Contempt of Court Act is much more difficult to enforce today, in the information age, than it was in 1981. Anyone who is sufficiently determined has probably already accessed the article by Rachel Aviv.
As such, the article prompted much debate online and specifically in legal corners of the Internet, even though the piece is mostly dedicated to careful analysis of the evidence rather than the legal process itself.
Practitioners and commentators on both sides of the Atlantic got involved, and the debate centred around two key areas: majority jury verdicts and cross-examination of defendants.
Majority decisions are controversial. It is true that they do come with caveats such as unanimity being the preferred outcome and judges retaining a lot of discretion, but the truth is that they do lead to a stark number of miscarriages of justice.
One commenter noted that this system exists because there is no death penalty in the UK, and it deals with issues like jury tampering.
Unfortunately that is not the case. Recent research by Appeal showed that the reason majority verdicts were introduced in 1967 was to reduce the influence of ethnic minorities and the working class.
As I argued before, there is simply no good reason to not require a unanimous verdict from juries, particularly for serious crimes when a miscarriage of justice can cost people years of their life.
The second issue appears to be with the mode of questioning which Letby faced during her trial.
One passage in particular has been re-examined in the light of Aviv's article and can be reproduced here because it is a direct transcript from the case:
Prosecutor, Nick Johnson KC: “You are a very calculating woman aren’t you, Lucy Letby?”
Lucy Letby: “No.”
Johnson: “You tell lies deliberately, don’t you?”
Letby: “No.”
Johnson: “The reason you tell lies is to try to get sympathy from people, isn’t it? Try to get attention from people?”
Letby: “No.”
Johnson: “By killing these children you got quite a lot of attention, didn’t you?”
Letby: “I didn’t kill the children.”
To be sure, this is an aggressive line of questioning, and it's not difficult to see why American commentators might be shocked at this being allowed to stand in court.
Indeed, it is very easy to imagine in an American criminal trial, the defense counsel shouting “OBJECTION!”, and such an objection being sustained by a judge because of the leading nature of the questions.
Compared to the issue of unanimous jury verdicts, it is much more difficult to say which jurisdiction does things better in this instance.
On the one hand, such constant and aggressive attacks from a prosecutor can serve to just punish a defendant who has not yet been found guilty. By the time these questions were being asked, the trial was already well underway and Letby had been pretty much broken by the ordeal. The only thing that the prosecution could hope to achieve here was to make Letby look more guilty, something which, on its own, hardly advances the cause of justice.
On the other hand, if a person is accused of a crime, then the trial should afford them a clear opportunity to rebut the charges against them while they are on the stand, speaking under oath.
The adversarial system of justice has a long and story tradition in English law and has, by this point, survived for centuries.
Overall, the debate has not been very edifying, although perhaps that goes without saying when talking about arguments on Twitter.
Perhaps it was the secret barrister who put it best when they recently posted:
TODAY’S COMPARATIVE LAW LECTURE:
Different legal systems across the world are different.
Angrily shouting “THIS IS DIFFERENT TO HOW WE DO IT!” may not be the slam dunk argument-winner you think it is.
Because different legal systems are different.
Thank you for your time.
Unfortunately, when it comes to comparative law, there is often a certain jingoism that takes hold. What should be an academic exercise that examines the advantages and disadvantages of a given legal system can often just turn into ‘our system is better than yours’.
When the New Yorker article is eventually published in this country, it will surely be worth reading. Furthermore, it should be approached with an open mind, both in respect of the collection of evidence against Letby and the way in which the criminal justice system operates.
It is difficult to think about reforming bad practices when chauvinism triumphs over and honest willingness to learn.
This week on the podcast we have a short episode about tort law. The mere mention of Japanese knotweed is enough to strike fear into the hearts of most homeowners, and this case examines what compensation might be available from a local authority that failed to act, all in the context of the famous ‘but for’ test.
Episode link: https://uklawweekly.com/2024-uksc-15/
Make a difference today,
Marcus