The Jolly Contrarian on Crime and Punishment

The Jolly Contrarian
  • 0.0 (0)
  • TRUE CRIME
  • UPDATED SEMIWEEKLY

Crime, criminal justice, and our systems of compliance jollycontrarian.substack.com

  1. Lucy Letby: waiving, or drowning?

    JAN 26

    Lucy Letby: waiving, or drowning?

    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? Thanks for reading! This post is public so feel free to share it. 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 eig

    41 min

  2. 10/11/2025

    Juries, proof and the appalling vista

    Trigger warning: this newsletter assumes readers are of sufficient maturity to understand and not be wounded by cultural references to cocaine, Starsky & Hutch, and physical money made out of paper. Also: these events happened a long time ago. My recollection is imperfect, and I have definitely changed and embellished the narrative to make it a good story. Dirty banknotes She don’t lieShe don’t lieShe don’t lieCocaine.J. J. Cale, Cocaine There is an urban myth that every bank note in circulation has traces of cocaine on it. Except, it isn’t an urban myth: it’s a fact. I know it is a fact because about 15 years ago I sat on a jury in Wood Green and listen to a police forensic expert have to admit it under cross-examination during a criminal trial. The trial concerned a gentleman from Tottenham who, the Crown alleged, had been dealing drugs. He did this, according to the indictment, from a car parked in a secluded side street off the North Circular. The case rested on three items found in the defendant’s possession: a wallet stuffed with cash, a set of portable electronic scales and, as I recall it, 79 individually wrapped “rocks” of crack cocaine. It seemed open-and-shut. The Crown called a police forensic scientist to give technical evidence about the cash. Firstly, there was a lot of it. A little over £5,000: a good deal more than you might expect a gentleman of the defendant’s prospects to be carrying around North London at three in the morning. Secondly, it was generously dusted, the witness said, theatrically clearing his throat, With a substance that mass-spectrometry revealed to be a mixture of sodium bicarbonate and methyl-3-benzoyloxy-8-methyl-8-azabicyclo-octane-2-carboxylate — At this the witness paused, for dramatic effect. The judge looked non-plussed. The jury waited for the punchline. He gave it, triumphantly: Which is commonly known as crack cocaine. Every single note was, in his telling, caked with the stuff. We of the jury were resolute. This witness was clearly an expect. He had used reliable scientific tests. He was convincing. There was little doubt what he said was true. But then the defence barrister stood up. His cross-examination ran along the following lines. Defence: In your professional experience, Mr. Henhouse, would you say it is common for banknotes to be contaminated with cocaine? Witness: It is not unheard of. Defence: But is it common? Witness: I suppose you could say it’s common, yes. I don’t know. Defence: Roughly how common? Witness: Ooh I wouldn’t like to guess. Defence: No, I dare say. But indulge me. What proportion of banknotes are contaminated with cocaine? Witness: Well, A fair proportion, certainly. Defence: What counts as “a fair proportion”? Witness: A lot, I suppose. Defence: It’s all of them isn’t it? Witness: I don’t know. Look, I haven’t check every banknote in circulation, have I? Defence: Of course you haven’t. Of course not. But how many have you checked, over your [theatrically checks notes] twenty-seven-year career as a forensic expert? Ten thousand? A hundred thousand? A million? Witness: I should say tens of thousands, yes. Defence: And in those tens of thousands, have you found one used bill that didn’t carry traces of cocaine? Witness: (Mumbles inaudibly) Defence: I’m sorry, Mr. Henhouse, I couldn’t hear you. Witness: No. Defence: No further questions, m’lud. It was beautiful. How banknotes get cocaine on them Now, I’m sure none of my regulars readers will know this, but banknotes are sometimes used to snort cocaine. (Those who do know this presumably found it out, as I did, watching Starsky & Hutch in the 1970s). This is how they get cocaine on them. Not every banknote in circulation has been used to snort cocaine. Nothing like it Rather, cocaine is fine, rather adhesive stuff. It gets everywhere. It tends to rub off on anything it touches. Such as nearby bank notes. Since even law-abiding citizens tend to keep their banknotes together, in a wallet, a contaminated note has plenty of opportunities to rub against innocent ones. Law-abiding citizens also have a habit of passing banknotes around. The will just give them away, to perfect strangers, in a way they won’t, so readily, with their other possessions. A large part of the JC is devoted to why and how humans do this, and what it all means: we need not dwell on it here. In any case, one encoked banknote is likely to come into contact with, and infect, many “innocent” ones over its lifetime. This means many law-abiding citizens — basically all of them, according to this police scientist who had sworn upon a bible — regularly carry cash contaminated with a classy recreational drug. [Shouldn’t that be, “Class A recreational drug”?— Ed]. Electronic scales of justice That was one piece of evidence presented — if reluctantly — in the trial. Another was that British drug dealers weigh and package their product using unremarkable consumer durables: digital kitchen scales. These scales, so said the witness, are plenty accurate enough to prepare and apportion crack for retail distribution. I was quite pleased to hear this. It speaks to attention to detail and a commitment to quality control I would not have expected in the criminal class. It is laudable in its way. Plus, those digital scales are neat. We have some in our kitchen. We keep them in a draw with the used chequebooks, spaghetti, dried up felt-tip pens, mysterious keys, broken utensils and ant poison. When the police apprehended the defendant, in his car, parked under a tree beyond the throw of the nearest street lamp, they found some Salter electric scales in his glove compartment. These they bagged up, labelled and presented to the court as “Exhibit A”. In the manner of a conjurer gulling an unwitting accomplice, the prosecutor bade a court official pass the scales, in their bag to the jury for inspection. I was surprised, and rather pleased, to see it was exactly the model we have the Contrarian household’s keys, pens, spaghetti and ant poison drawer. The final exhibit — which the court official did not hand over for inspection, for some reason: we were invited to regard it from afar — was 79 individually wrapped “rocks” of crack cocaine. The same police analyst explained what a “rock” is (one tenth of a gram of cocaine mixed with baking soda), and that its street value was about £2,000. The arresting constable had already testified that he found these in the defendant’s jeans pocket. This was before the era of always-on bodycams, but the defence did not dispute it. These were the uncomfortable circumstantial facts that the defendant’s barrister had to deal with: how to explain what his client was doing in a parked car in a secluded spot, in possession of five large in cash, a set of digital scales and enough cocaine to entertain most of Crouch End for a fortnight, if he wasn’t planning to sell it to people. To be sure, the facts were all circumstantial: no one saw this fellow supplying anyone with any drugs. It required inference. But, as the prosecutor would suggest in his closing submissions, it was not a hard one to draw. Then began the case for the defence. The defence case The defendant turned out to have a rather ingenious barrister.[1] His strategy was threefold. Firstly, with the unwitting assistance of the police’s own expert, he established that coke-contaminated bank notes are not in themselves evidence of anything. Even the police conceded that, as far as anyone knows, every bank note is coke-contaminated. Secondly, he made a complex submission that, while possession of large sums of money or large quantities of crack invited, to some degree, an inference that their holder for the time being was a drug dealer, having both at once did not: one is tendered in exchange for the other, after all. While the possession of both money and drugs no doubt invited some adverse insinuations about the defendant’s character, that he was supplying drugs to customers on a commercial basis — the offence for which he had been charged — was not one of them. There are obvious flaws in this reasoning — we in the jury saw them at once — but they flummoxed the poor prosecutor, who looked quite blindsided by this submission and was unable to make anything of it. The defence’s last zinger came in cross-examination. It was a master class in the ancient art. Once again, the victim was the same benighted forensic scientist, brought out, so he thought, to establish uncontroversial scientific facts about cocaine and banknotes, and who was already having a miserable day, which got worse when, against his expectation, the cross-examination turned to the kitchen scales. It went like this: Defence: The device recovered from the defendant’s car is a set of ordinary kitchen scales? Witness: Yes, I believe that is right. Defence: Salter ‘ARC’ electronic scales. Witness: I’ll take your word for it. Defence: These are ordinary kitchen scales — the sort of thing that anyone might own. Even members of the jury? Witness: (Observing several jurors nodding vigorously) Yes, I dare say. Defence: But they are also commonly used for measuring up quantities of crack? Witness: (Brightly) Yes. Yes I believe that is very common. Defence: Where do drug dealers usually measure up and package their supplies of crack? Witness: Well, I have no idea, as you can appreciate. Defence: But if you had to guess? Would they do that, do you think, somewhere private, secure, well lit, perhaps with clean hard surfaces? A controlled environment? Witness: Yes, I suppose so. Defence: Like a car parked in dark street? Witness: Well, I couldn’t rightly say — Defence: If you were a drug dealer, would you prepare crack in a car parked up just off the North Circular? Witness: Well, no — Defence: No you wouldn’t, would you? That would be absurd. I mean, just imagine it. Coke would

    30 min

  3. 08/29/2025

    Lucy Letby: you had to be there

    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. Thanks for reading! This post is public so feel free to share it. 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, t

    32 min

  4. 07/28/2025

    Waiver of privilege

    This is a follow on piece from Lucy Letby: waiver of privilege? It is mainly about waiver in a criminal context. The rules around waiver are more developed in the civil cases, since waiving privilege there is not quite as catastrophic to life, liberty and freedom, so it does happen. A document or communication is “once privileged, always privileged”. The principle that a client should be free to consult his legal advisers without fear of his communications being revealed is a fundamental condition on which the administration of justice as a whole rests. Legal professional privilege is the predominant public interest to be upheld, even where the client no longer has any recognisable interest in preserving the confidentiality or has died, or, in the case of a company, been dissolved. — Archbold on Evidence, 12-14 You come at the king, you best not miss.— Omar Little, The Wire Unusually, the JC made a bit of a splash when a recent piece on waiver of privilege in the Lucy Letby case caught the attention of the Double Jeopardy: Law and Policy podcast. After the usual introductory blancmange, the article settles down and looks at the case of R v Singh which seems to reverse the sacred principle that no judicial officer can come between a client and her lawyer: that all their words, notes, letters, suggestions, gestures, innuendoes and privately-communicated semaphores may forever, and for all purposes, stay private, except where the very contents of a privileged communication themselves are the issue before the court — if, for example, a defendant appeals on the grounds that she was given negligent advice. Until 2017, there were discrete and unobjectionable rules dealing with two commonly “time wastey” scenarios: firstly, were a defendant has parted ways with trial counsel and appointed new representatives for an appeal; secondly, where the defendant wishes to blame her conviction on her trial representatives doing a bad job. This Substack is reader-supported. To receive new posts and support my work, consider becoming a free or paid subscriber. While they are often related, these scenarios are nonetheless conceptually distinct. The rules, in essence, are firstly, that new counsel must confirm to the court they have spoken thoroughly with outgoing counsel and fully understand the background and their strategy at the original trial — this is the rule in R v McCook — and secondly, if the defendant wishes to blame her conviction on her trial representatives’ “inadequate representation”, then she must waive legal privilege in her discussions with the trial representatives to the extent needed for the Court to determine whether the trial representatives were to blame or not. This principle comes from a case called R v Frost-Helmsing. But in 2017, those sensible rules got tangled up with the Court of Appeal’s notorious aversion to hearing fresh evidence in the case of R v Singh. There ought to be a clap of thunder, a lightning bolt and a blood-curdling scream, by the way, whenever anyone says “fresh evidence”, such is the Court’s aversion to it. Now, whenever a defendant has appointed fresh representatives, and they wish to present fresh evidence, they must submit a signed waiver of privilege before the judge will even consider whether to hear an appeal, even if there is no suggestion of negligence by the trial representatives. The text version of the rest of the article — it’s a monster — can be found here. Thanks for reading! This post is public so feel free to share it. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit jollycontrarian.substack.com/subscribe

    57 min

  5. 07/21/2025

    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. Thanks for reading! This post is public so feel free to share it. 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, knowing full well he used some weapon, was unsure precisely which one. Ms. Letby is not like Bill Sikes Ms. Letby’s case is different. Here there is another possible explanation: the babies were all vulnerable infants in a neonatal intensive care unit. They might have collapsed without anyone trying to harm them. Absent better evidence incriminating Ms. Letby, this is without question a reasonable doubt: if these babies weren’t at elevated risk of death by natural causes, they wouldn’t have been in an intensive care unit. But Mr. Justice Goss judge put that important qualification on his direction in the second stage: you must be sure that she deliberately did some harmful act to the baby [...] accompanied by the intent and, in the case of murder, [it] was causative of death. What he did not say, but perhaps should have is, If you are not sure that the defendant deliberately harmed the babies, you need not worry precisely what that act she did. You are not sure she did an act at all. In that case, you should acquit. For, if there is an plausible innocent explanation that you cannot rule out, how can you be sure she did it? You need to rule out all possible innocent explanations. And how can you possibly rule out an open set of possibilities unless you know exactly what the defendant did? There is a circularity here. * If I am sure Ms. Letby murdered the babies, I do not need to know precisely how she did it. * In this case there is a reasonable possibility the babies died of natural causes (including unknown unknowns). * Therefore I am not sure Ms. Letby murdered the babies. * To be sure Ms. Letby murdered the babies, I must rule out natural causes. * Logically, I cannot rule out all unknown unknowns, i.e., natural causes, by elimination. * The only practical way to rule out natural causes, is for the positive evidence that Ms. Letby murdered the babies be overwhelming. * The positive evidence incriminating Ms. Letby is not overwhelming: she did not confess. The forensic evidence does not specifically implicate her. The implied correlation has been debunked. * The only positive evidence that could rule out innocent causes of death would be direct evidence establishing the precise method of murder. * Therefore, to be sure Ms. Letby murdered the babies, I do need to know precisely how she murdered the babies. It is hard to frame hypotheticals here because the sort of evidence that usually makes juries certain a defendant is guilty is direct eye-witness evidence that they committed the crime, or circumstantial evidence so closely adjacent to the crime that there is no credible inference one could draw other than that the defendant is guilty. The “Sherlock Holmes method” seemingly favoured by Dr. Evans makes for great fiction, but as it requires proving a negative — you cannot eliminate unknown unknowns by deduction — it does not work in real life. The way one disproves “unknowns” is by positively proving a “known”: a defendant with a gunshot wound to the head is most unlikely to have died of an asthma attack. If there is clear evidence of murder, it is not difficult to infer the action that caused it: a gunshot wound implies a pulled trigger. If there is not, then there must be doubt that it was that perpetrator. Bill and Nancy’s case is the unusual case justifying the direction. But that direction, therefore, ought to have been unnecessary here. It seems misplaced. It seems apt to confuse a jury doubtlessly already brain-fried by ten months of baffling technical evidence, the circumlocutions of senior barristers, and a judge’s summing up that was as long as a Tolkien novel. In Ms. Letby’s case, the victims’ “manner of collapse” did not, to the exclusion of anything else, imply malice. We know this definitively because every collapse that led to a formal medical examination, concluded — based on the best live, real-time evidence it could get — that the collapse had natural causes. The Crown must definitively displace this presumption. The only way of doing that was by showing precisely how Ms. Letby is supposed to have caused the collapses. Implausible coincidence as compelling evidence The direct forensics do not seem directly to implicate Ms. Letby. Could there be some meta-evidence that could do so instead? As discussed elsewhere, the main — only, really — evidence the prosecution offered that implicating Ms. Letby personally was her commonality: the seemingly implausible coincidence that she, and only she, turned up like a bad penny at every collapse for which she was charged. Once may be happenstance, twice coincidence, but by the time we get to the twenty-second occasion, we are surely past the point of even enemy action. But this is not positive evidence, but probabilistic inference. Its credibility can only be assessed by a statistical analysis, and one was not carried out. The Crown Prosecution Service nixed a police line of inquiry into exactly that question. The appeal The defence appealed the Judge’s direction to the Court of Appeal, which gave its judgment on 2 July, 2024. It was not sympathetic. Mr. Myers submitted that the jury should be directed that they could not convict the applicant of any count unless they were sure of how the baby co

    42 min

  6. 07/09/2025

    Lucy Letby: confirmation bias

    Take the following hypothetical scene, which describes Lucy Letby’s experience at the Countess of Chester Hospital: Internal investigation A hospital experiences a cluster of deaths and collapses materially in excess of its usual rates for such events. Staff notice a particular nurse was present during an abnormal proportion of the collapses. Concerned at the possibility of foul play, hospital management investigates the collapses, focusing on those where the nurse was present. Those where she was absent are removed from the cluster. The investigation is widened to include other unexplained collapses at which the nurse was present. Some are added to suspicious cluster. External investigation Though hospital management has not thoroughly considered alternative possibilities — that the cluster was simply “statistical noise” or that it had a different, non-malicious explanation — it presents its suspicions to the police. Police investigate the narrow question “whether there are sufficient grounds to prosecute the nurse” and not, specifically, “what else could have caused the original cluster?” Police do not interrogate the hospital’s internal investigation methodology. Instead, Police seek firstly evidence consistent with foul play — typically technical medical analysis — and secondly, given there has been foul play, evidence consistent with the nurse being behind it — this will be weak circumstantial evidence of “unusual behaviour” consistent with guilt. These two steps are markedly distinct. Notably, Police disregard behaviours “consistent with” the nurse’s innocence. Media involvement The media pick up the story. Through repetition and hyperbole, the nurse’s identified “guilty“ behaviours are sensationalised to be ever more incriminating. “Experts” speculate on the nurse’s motivation: “God complex”, “craving attention”, “Munchausen’s by proxy”, secretive behaviour” for example. Though they frequently contradict and none were formally diagnosed before (or after) the investigation, these descriptions are taken in the round as further corroboration of the nurse’s guilt. This may sound like a carefully tailored account of Ms. Letby’s apprehension and conviction, but it is not: it describes the pattern followed in the prosecutions of Beverley Allitt, Benjamin Geen, Colin Norris, Susan Nelles, Jane Bolding, Victorino Chua, Lucia de Berk, Daniela Poggiali and dozens of other health professionals prosecuted in the western world for murder by poisoning. Thanks for reading! This post is public so feel free to share it. First find a suspect, then find a crime Now, this is not to imply that none of these individuals committed murder nor, necessarily, that all were wrongly prosecuted — though some of them were — but rather to note that the “healthcare serial murder” scenario presents distinctive challenges uncommon in normal crime scene investigations. Normally, criminal investigations start with little doubt there’s been a crime, but a lot about who committed it. A dead body with an ice-pick in its ear and a bullet-holed playing card in its breast pocket is all but certain to have been murdered. The investigator’s main challenge is working out by whom: once identified, linking the villain to the crime tends to be straightforward. With healthcare serial murder cases, the “route to suspicion” is curiously backward. It starts with a cluster of events that could be but, all else being equal, are most likely not, criminal in nature. Assuming, nevertheless, they are criminal, investigators then hypothesise about the most likely suspect. Inevitably, their suspicion falls upon the person present at the most identified events. There may then follow an exercise in “refining” the cluster to better fit the “foul play” theory. Collapses at which the nurse was not present may be dropped — recharacterised as non-suspicious — while previously unsuspicious collapses during the nurse’s shifts may be upgraded to “suspicious” in light of her presence. The refined cluster will, by her constant presence alone, much more strongly implicate the nurse then the original one did. This is, of course, the Texas sharpshooter at work before our very eyes. With that “stronger” framework for suspicion, investigators will set about finding evidence to support their theory of foul play. This process may start before police are involved, but will carry on with great gusto once they are on the case. It will often gloss over two important steps: Firstly, if investigators put any effort at all into ruling out innocent explanations, it will be early in the process, and will be peremptory. Secondly, investigators will make little effort to link any wrongdoing directly to the suspect. The main “identification” evidence will be the nurse’s “unique opportunity”. Since, the reasoning goes, she is the only person who could have done it, little needs to be done to show that she actually did do it. Ms. Letby’s is perhaps the most pristine example. The consultants started with the plainest concession to police they had no grounds for suspecting foul play in any of the collapses, and no grounds for concern about Ms. Letby: Nurse As part of the review staffing was looked at, there was a notable high statistical relationship between a member of the nursing staff and babies deteriorating in the unit. There is no evidence, other than coincidence. [...] The nurse has been working at COCH for approximately 8 years full time, she is a Cheshire resident, and a single parent. The staff member has since placed a grievance against COCH. There has been no formal investigation of misconduct and no motive identified. There are no mental health issues known and nothing has been highlighted by occupational health. There are no management issues. Yet they still managed to move a jury from “no evidence of any crime” to “legal certainty about most of them”. Just how that happened is the topic of this post. Epistemology and the law Aquick reminder about the epistemology of the law. Where there is a dispute about what happened, any court case is beset by “epistemic” uncertainty. History is fixed. Deeds are done. What those deeds were and whether they were dirty may be as immutable as the stars but, still, certain knowledge of them is beyond our mortal grasp. A court does not and cannot know what really happened. It, and the whole of the rest of the outside world, is in a state of permanent, incurable un-knowledge about it. The best it can do is assess likelihoods. A criminal trial is a highly artificial contrivance. One way of looking at it is that it is designed to solve this exact problem — incurable epistemic uncertainty — by generating reliable probability estimates. Criminal trials cannot and do not purport to generate certainties. The process is fundamentally probabilistic. Those outraged that anyone should question the delivered verdict of a British jury should remember this: even a flawlessly-conducted trial between expert counsel examining perfectly-motivated witnesses before an enlightened jury can deliver injustice. “Beyond reasonable doubt” is an epistemic step short of certainty. The system’s reliability can itself be measured in probabilities. According to ONS data, the annual homicide rate in the UK has been a relatively stable 550 since 1970. According to University of Exeter data in that time there have been 150 false convictions. This gives a false conviction rate of just under 1%. If we take the beyond reasonable doubt probability of “95%” assessment at face value, this means the system is meeting, or exceeding, its SLA: A 95% certainty rates implies a 5% false conviction rate. A criminal trial is designed to isolate an artificially limited set of legally relevant facts and assign them probabilities as a way of assessing of what is most likely to have happened and whether that satisfied the artificial legal construct called a “crime”. That court assessments are expressed in words — “beyond reasonable doubt”, “more likely than not” — should not obscure the fact that they are probabilistic assessments. Explicitly, criminal courts convict on probabilities lower than 1. A small, but statistically significant, error rate is factored in. There is no magic to it: the criminal process shares all our human cognitive frailties. Though barristers tend to, we should not put it on a pedestal. “I wouldn’t start from here” There is an old joke, these days not politically correct, even though it articulates unassailable wisdom: A lost tourist asks a local policeman for directions to Dublin’s cathedral. The policeman scratches his chin and says, “Well, if I were you, I wouldn’t start from here.” The soundness of your conclusion depends on the plausibility of your premises. All else being equal, start with the most likely explanation, and stick with it until something rules it out. If you are curious about a cluster of collapses, don’t start with murder. Patients do unexpectedly collapse at every hospital every year. Nurses don’t, very often, murder patients. Starting with a cluster of unexpected collapses and proceeding directly to a murder investigation is a bit like hearing hoofbeats and looking for a zebra. If that is your frame — and in healthcare serial murder cases, invariably it is — you are at grave risk of bad confirmation bias. Good and bad confirmation bias Confirmation biaskɒnfəˈmeɪʃᵊn ˈbaɪəs (n.) The tendency to search for, interpret, and recall information that confirms a pre-existing belief, preferring information that supports that belief, ignoring information that contradicts it, interpreting ambiguous information to be consistent with the belief, and more readily recalling information that confirms the belief than that which challenges it. Not all confirmation bias is bad. In f

    43 min

  7. 06/13/2025

    Lucy Letby and behavioural profiling

    A leopard goes to the doctor.“Doc,” he says, “You gotta help me. Whenever I look at my wife, I see spots.”The doctor looks at him for a minute and says, “Well, what do you expect? You’re a leopard.”“I know that, Doc. But I’m married to a zebra.” Healthcare serial murder enquiries are unusual in that they generally start without specific evidence of wrongdoing as such. Suspicion generally arises from an unusually large cluster of unexpected deaths. From there, prosecutors work backwards towards a perpetrator. Their job is made harder by two inconvenient facts: firstly, hospitals generally, and intensive care units specifically, are places where “unexpected deaths” are a regrettable part of a normal operating environment. There is a “going rate” of unexpected collapse, and a “suspect cluster” is simply one that exceeds that going rate, usually not by much: a standard deviation or two above the hospital’s average. The elevated rate might be what you’d expect once in ten years, say, or fifty — but not one in a million. According to Professor Sir David Spiegelhalter’s evidence before the the Thirlwall Inquiry, the increase in deaths at the Countess of Chester Hospital’s neonatal unit in 2015 would be within the expected range for hospitals across the UK in any year: “If we assume an underlying rate of 3 neonatal deaths per year, then the probability of getting 8 or more deaths in 2015 is 0.02. This would generally be considered as constituting an “alert” signal. Again, to put this in perspective, we would expect around 3 such signals each year in the UK, just by chance alone.” Secondly, “malicious nurses furtively murdering patients” is a one-in-a-million sort of thing. You would not expect to see it “every so often” in a given ICU. All other things being equal, you would take the “one in fifty” option over the “one in a million” option. From a starting point of there being “an unusual cluster of deaths”, there is a quite likely explanation — it’s just one of those things — and a highly unlikely one — there’s a serial murderer in the ward — and no evidence, as yet, to tell us which way to lean. But as the saying has it: when you hear hoofbeats, think horses, not zebras. At least, until you see some stripes. A prosecution intent on proving murder will need “posterior evidence” to support its hunch and rebut the far more likely explanation that the cluster is just “one of those things”. Investigators must therefore scratch around looking for secondary indicators of foul play that were not picked up at the time of the deaths and, if they find any, a plausible suspect having both the opportunity and disposition to murder. The first question — “was it murder?” — can be addressed by technical medical evidence. That is not the topic of this post. This post is about the second question: “given that it was murder, whodunnit?” Here, generally, you need solid “identification evidence” incriminating a specific person. Eyewitnesses. Fingerprints. Confessions. That kind of thing. The problem with healthcare serial murder cases is that they start and often end without compelling identification evidence. Prosecutors are often obliged to resort to unusual things the suspect did, or said, that do not specifically indicate that she committed a crime, but are more broadly “consistent with” it. This is a bit of a recipe for confirmation bias. In the 1970s, the FBI’s legendary Behavioural Science Unit learned how subtle behavioural patterns could lead them to notorious serial killers. Would their techniques apply, or be any use, in a classic healthcare serial murder case? When the lambs stopped screaming Lecter: Oh, Agent Starling. You think you can dissect me with this blunt little tool?Starling: No! I thought with your knowledge —Lecter: You’re so ambitious, aren’t you.—Silence of the Lambs (1991) In 1972, Howard Teten and Patrick Mullany established the FBI’s Behavioural Science Unit in Quantico, Virginia. You may remember it form the opening scenes of Silence of the Lambs. The FBI had long recognised that certain types of violent crime — “serial” ones, particularly — pose unique challenges to traditional policing methods. Serial killers murder in the shadows. They tend not to leave living witnesses, nor much in the way of physical evidence behind them. By contrast, most normal violent crime happens between people who know each other and are embedded in stable, stationary, long-established social networks. When violence breaks out there tend to be many witnesses, lots of evidence, and only a few plausible suspects. Second-order psychological inference to work out who did what is rarely needed. Serial offenders are different: they tend to be antisocial, itinerant, they target strangers, and those who are any good at it soon develop ways of avoiding detection. But they may still give themselves away by their habits and idiosyncrasies, predictors for which may be inferred from crime scenes and improbable commonalities between victims. The FBI developed behavioural profiling techniques designed to point to patterns not immediately obvious to your regular cop on the beat. Hence, the premise of a “behavioural checklist”: a range of traits which, when found in unique combination, operate as a strong predictor that an individual is predisposed to behaving in a highly unusual, uniquely antisocial way. Focus on individuals like this and you have far a better chance of finding your man. So was born the legend of the “mindhunters”: the FBI profiler brilliantly decoding the machinations of an malevolent evil genius, tracking him to his hidden lair using just his inadvertent habits and idiosyncratic behaviours. It is a beguiling, but somewhat romantic, image. Real-life “hits” from behavioural profiling are not always as sophisticated as Buffalo Bill’s dressmaking connection in Silence of the Lambs. They tend to involve relatively straightforward patterns that require some expertise to see, but are still not especially esoteric. Regular serial killers versus healthcare serial killers Being more prosaic, “regular” serial killer investigations have particular features that lend themselves to behavioural profiling: Serial murder conundrums Likelihood it was murder: certain.Method of murder: certain.Common perpetrator: certain.Direct evidence: none.Perpetrator identity: unknown. But mainly: you have no clue who the murderer is. What you do know, for sure, is that there has been a series of murders. You’re pretty sure they are linked: there is a specific modus operandi, and freaky features that make a coincidence highly improbable. This part of your case — were they all murders by the same individual — is not really in doubt: the corpses all have bullet-holed playing cards in their breast pocket and an ice pick in the ear. They were definitely murdered by the same guy. The question is, rather, who is that guy? A behavioural profiler asks, “What are the characteristics we would expect in a person who would commit this kind of crime?” Profiling, thus, works forward from probable patterns in certain behaviour to predict what sort of person the perpetrator will be. It narrows down who you are looking for. Once you find a suspect with the predicted characteristics, it then becomes a question of finding hard evidence to tie him to the crimes. Importantly, you develop your theory before you settle on a suspect. You use these characteristics not to verify suspects, but to weed them out. The risk of confirmation bias is therefore low. If you find a suspect who fits the profile, you must then look for hard evidence that definitively connects that suspect to the crimes — ballistics, trophies, incriminating possessions like ice picks and decks of bullet-holed playing cards — things that an innocent person is highly unlikely to have. You don’t rely on the profiling exercise itself to prove anything in court. You probably don’t even mention it. It was a preliminary filtering tool in the investigation, not a conviction technique itself. Interesting side note here, quickly: much is made in healthcare serial killer cases of the defendant’s sophistication in avoiding detection, covering her tracks and disposing of evidence: in this regard, it is assumed, healthcare serial murderers are like real serial murderers. But real serial murderers are not like this. When they are finally identified — with or without the help of behavioural profiling — they tend to be found with lots of incriminating evidence of their crimes: trophies, weapons, body parts and so on. The challenge is finding the murderer, rather than proving what he did when you do find him. Anyway, all of the above applies to regular serial murderers. Healthcare serial murderers — like killer nurses — are a different ball of wax. They don’t lend themselves to behavioural profiling: Healthcare serial murder conundrums Likelihood it was murder: not certain.Method of murder: not certain.Common perpetrator: not certain.Direct evidence: none.Perpetrator identity: Known and already central to the investigation. Here the main thing behavioural profiling is useful for — finding a likely suspect — is already done. There is no need to scour a large, widely distributed, poorly documented and inchoate group itinerant individuals: suspicion starts and finishes with statistical clustering of deaths in a single facility staffed by a small number of people. If it is murder, the potential culprits are few and already known. Usually there is only one: the nurse with the highest correlation of shifts to collapses naturally fills the frame. Who else could it realistically be? But note: the hard question to be answered here is not “whodunnit” but was it even a murder? The suspect’s behavioural traits won’t help with that. Or will they? Behaviou

    40 min

  8. 05/21/2025

    Lucy Letby: The ludic fallacy

    In his book The Black Swan, Nassim Nicholas Taleb presents the “ludic fallacy”: the mistake of applying unvarnished theoretical probabilities to real-world scenarios. Thanks for reading! This post is public so feel free to share it. Here is his example: You have a fair coin which, on the last 99 flips, had come up “heads”. Assuming it is a fair coin, what is the probability of it coming up “heads” on the 100th flip? Professor of statistics: Easy: 50%. Professional gambler: Come on, chump, it is 100%. What are the odds of it being a fair coin? We are looking at a highly unusual outcome. The odds of getting it with a fair coin are something like a googol to one against. That means this did not happen by chance. We can rule out the “null hypothesis”, therefore. It can’t be a truly random event: either the coin is loaded, or the flipper is somehow rigging the game. This is an effective logical argument: If: The coin is fair, andThe flipping method is fair, thenThe coin will not land heads 100 times in a row. Therefore, if the coin does land heads 100 times in a row, then either:The coin is not fair, orThe flipping method is not fair. So, we can try to get to the bottom of this. We can ask to inspect the coin. We can test it out for ourselves. If, on a thorough inspection: its weight, shape, balance, density, magnetism and so on seem fair, and if we flip it a few times for ourselves and it yields expected something like the expected 50/50 outcome, we can rule out the coin as the problem. We can ask to inspect the flipping process. We will need to be wary: an experienced hustler may be skilled at conjury. She may engineer “heads” each time through misdirection and sleight of hand. Especially if the flipping happens “off-stage”. If we can’t see the coin being flipped, we don’t know how it may have been edited or fixed to omit all the “tails” outcomes, or force the heads result. In any case, if we are not allowed to inspect the coin, or we are not allowed to observe the flipping method, alarms should sound immediately. This is what a conjurer would do. We should not let ourselves be misdirected here. Ludic fallacy applied We have the potential for a “ludic fallacy” in Ms. Letby’s case. We know the probability of a nurse being rostered on for a given shift. Depending on how hard she works, it is between one-in-five and one-in-three. Here, there were 25 “events” — collapses for which she was charged. She was on duty for all of them. The chances of the same nurse being present at 25 collapses in a row is a bit like flipping 100 heads in a row: the odds against it are not quite a googol to one, but they are still so vanishingly small — in the billions to one against — as to be impossible. So we can reframe our logical argument: If: Ms. Letby is innocent, andThe sampling method for the collapses is fair, thenMs. Letby will not be on duty for 25 collapses in a row. Therefore, if Ms. Letby was on duty for 25 collapses in a row, then either:She is not innocent, orThe sampling method for the collapses was not fair. The “null hypothesis” — that the collapses were caused by unrelated natural causes and Ms. Letby’s presence was a pure coincidence — is off the table. We have two things to consider: firstly, what are the “base rate” probabilities for these alternative explanations, and secondly, what evidence do we have to support the alternative explanations that might change those? Base rates What is more likely? That someone, perhaps inadvertently, cherry-picked some statistics, or that a nurse tried to murder 25 premature infants? I don’t have hard data, but I hope you won’t find the suggestion that people being a bit casual with information is a bit more likely than nurse serial murderer, if you had to choose. Here, we do have to choose. We should be prepared to change our minds if the evidence requires it, but until we have a good reason, we should assume an unusual coincidence of collapses is more likely to be sampling bias than serial murder. Because, all else being equal, sampling bias is common, and serial murder isn’t. So is all else equal? There are things we can check. We can observe the nurse: her activities, her logs, hospital monitor outputs, swipe card data, recollections of other nurses, her behaviour, her social media, her apparent psychiatric state — is there anything that suggests malice? Did anyone see her attack an infant? Did she stockpile insulin? Was she spotted fiddling with feedbags? Did she Google “venous air embolus” or “killing an infant with milk”? We can also inspect the collapses. Were these patients unusually susceptible to collapse? How, generally, was the hospital performing? Were there other collapses? Were there other deaths? How thorough was the process of going through the hospital records over the 15-month suspect period to find other suspicious episodes? Have any collapses been ruled out? Can we have a look at those? And we can inspect the charge selection process. There ought to be a lot of data about that. Police, CPS and the hospital will all have copious records of their discussions, conversations and what investigations they took. There will be post-mortems and tests. We can see how the suspicion arose, how the suspicious events were tested, what has been filtered out and on what criteria. In this case, the “coin” is Ms. Letby. The “master magician” flipping it is the Crown Prosecution Service and its beautiful assistant, the Cheshire Police. How much information do we have about each, and what does it tell us? The nurse The nurse has been working at COCH for approximately 8 years full time, she is a Cheshire resident, and a single parent. The staff member has since placed a grievance against COCH. There has been no formal investigation of misconduct and no motive identified. There are no mental health issues known and nothing has been highlighted by occupational health. There are no management issues. If a coin is loaded, you can often tell immediately. You do not always need to flip it to know. It will be misshapen, shaved, magnetised or counterweighted. At the limit, you can flip it for yourself and see how it performs. The key is to be able to freely and fully inspect it. If a nurse is repeatedly murdering patients in an intensive care unit, likewise, you should be able to tell. You should not need to look at a roster of attendance to work this out. The key is to be able to freely, fully inspect her behaviour. So, have we had an opportunity to freely test the nurse? Yes. Ms. Letby was under suspicion for the best part of a decade. She stood trial for ten months. She took the stand for fourteen days, much of it under the glare of withering cross-examination. Her every movement has been the subject of deep-sea dives by an army of keyboard warriors: your correspondent is but one. What behaviour would we look for? We might expect to catch her in the act, or in possession of medicine or instruments she cannot explain. We might expect incriminating CCTV footage. She may be overheard saying incriminating things. We might expect some documented mental illness, psychiatric issues or some criminal propensity in her background. We might expect her immediate colleagues to harbour suspicions about her. We might expect them, at the very least, to be uneasy around her. What have we seen? In the round, a striking lack of the characteristics you would expect of someone committing serial murder. No direct evidence. No possession of incriminating implements. No CCTV footage. No history of mental illness, emotional abuse or criminal propensity. And her immediate colleagues, to a person, attest they had no concerns about her behaviour. Even the hospital consultants, in their first meeting with the police, conceded as much: As part of the review staffing was looked at, there was a notable high statistical relationship between a member of the nursing staff and babies deteriorating in the unit. There is no evidence, other than coincidence. Now, it is not necessarily fatal if there are none, or few, of these things — one thing a master criminal must do is camouflage her incriminating traits — but it makes our base rate case — “the identified nurse is a serial murderer” — even more improbable. The charge selection method [...] This is after all the basis of our concerns and I think for the police to have their interest piqued we need to have that with all of the cases (it’s not going to be in the info Ian H/Stephen C have given to the police). I have attempted to do this as belwo [sic] for the ones I was involved with but hopefully more In a stating the facts way than a subjective finger pointing way. If everyone is in agreement we should all do something similar for the ones we know about. Time is of the essence, I would like to get this to Superintendent Wenham by the middle of next week at the latest. Ravi —Email from Ravi Jayaram to Consultants at the Countess of Chester Hospital, 4 May 2017 What about the Crown’s charge selection method, then? We start by estimating the chance of a nurse being on duty for a given shift. Let’s give Ms. Letby the benefit of the doubt and say it was ⅓. It is from here that the improbability of Ms. Letby’s coincidental presence flows — multiply ⅓ by itself to get the cumulative probability for each successive collapse. By the time you have done this 25 times, it is a very small number indeed. But only if you selected collapses and without reference to Ms. Letby. If your “sample space” of shifts from which you are selecting suspicious events comprises only shifts on which Ms. Letby was working, her chance of being on duty for a given shift is not ⅓, but 100%. You can multiply 100% by itself as many times as you like, and you still get 100%. So it is important to be sure the sampling was done in a way that did not pre-judge Ms. Letby. If the sample

    30 min
See All (14)

About

Crime, criminal justice, and our systems of compliance jollycontrarian.substack.com

Information

You Might Also Like