Lucy Letby — the judge’s direction

In his summing up, Mr Justice Goss instructed the jury that they did not need to be sure precisely how Ms. Letby murdered the infants, as long as they were sure she did:

“If you are sure that someone on the unit was deliberately harming a baby or babies you do not have to be sure of the precise harmful act or acts; in some instances there may have been more than one. To find the defendant guilty, however, you must be sure that she deliberately did some harmful act to the baby the subject of the count on the indictment and the act or acts were accompanied by the intent and, in the case of murder, were causative of death [...].”

Later, he said:

“In the case of each child, without necessarily having to determine the precise cause or causes of their death, and for which no natural or known cause was said to be apparent at the time, you must be sure that the act or acts of the defendant, whatever they were, caused the child’s death, in that it was more than a minimal cause. The defendant says that she did nothing inappropriate, let alone harmful to any child.”

Before I go on, a nitpick. Why must lawyers torture the language so? What did it ever do to them? When the judge says to the jury:

To find the defendant guilty, however, you must be sure that she deliberately did some harmful act to the baby the subject of the count on the indictment and the act or acts were accompanied by the intent and, in the case of murder, was causative of death.

What he means is:

To find the defendant guilty you must be sure she deliberately harmed the babies and, where charged with murder, murdered them.

The courts have been at pains to “demystify” the formal legalese of the criminal justice system — it binned the clear phrase “beyond reasonable doubt” in favour of vaguer “sure” some years ago — but reforming terminology is pointless as long as practitioners still speak like Mr. Tulkinghorn. Circumlocution was a feature of Ms. Letby’s trial.

Anyway.

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A standard direction

Mr Justice Goss’s direction was standard. He may have adapted it from a pre-prepared script used in similar cases. In principle, it is correct and, in certain cases, undoubtedly sensible: it helps the jury convict where, for other reasons, it does not doubt the defendant is guilty, but lacks precise detail about how she carried out the crime.

After all, without a body, a court could not otherwise convict for murder.

There are two parts to the direction. Mr. Justice Goss introduces them in the reverse of their logical order, which is as follows:

* You must be sure the defendant deliberately harmed the babies in a way she knew was likely to kill them.

* If, and only if, you are sure that, she did something intended to kill them, you need not be sure exactly what that thing was.

Of course, usually one becomes sure a defendant committed a crime by identifying precisely how she did it. But if no one witnessed murder and there is no body, for example, that will not be possible. Hence the direction.

There are cases where it might apply even where there is a body, but you have to be somewhat imaginative to contrive examples. With apologies to Charles Dickens, try this one:

The tragic case of Nancy and Bill

Imagine a murder trial where there is unimpeachable evidence from credible witnesses that Nancy met the following miserable end:

Nancy was alone in an empty room.

Bill entered with a cricket bat and a baseball bat and closed the door behind him.

Bill and Nancy were overheard arguing. Nancy shrieked, “No, Bill! Please don’t hit me!”

Bill replied, “You asked for it.”

Several audible thuds followed. Bill then left the room, covered in blood, slammed the door and stormed off.

Police discovered Nancy in the room, beaten to death. They recovered the charred remains of the bats from the fireplace.

There is no doubt Bill murdered Nancy. It doesn’t matter whether he used a cricket bat, a baseball bat or some other unknown implement: she was definitely murdered, and he definitely did it. There is no other possible explanation for her death. The jury should, of course, convict.

You can imagine the judge in Bill’s case directing the jury the same way Mr Justice Goss did:

If you are sure Bill deliberately beat Nancy to death, you do not have to be sure of the precise instrument or instruments; there may have been more than one. To find Bill guilty, however, you must be sure that he deliberately beat Nancy somehow, intended his act and thereby caused Nancy’s death.

We can see at once that this is sensible: it would be unthinkable for Bill to escape conviction simply because his jury, kn