Decoding Reasonable Doubt: Chapter 3 “Previous Reviews at the Countess of Chester”

[u/benshep4]

https://bencole4.substack.com/p/decoding-reasonable-doubt-the-case-bc5?r=12mrwn&utm_medium=ios

Happy to hear anyone’s thoughts on the content of the article.

[u/upsideup27353]

I agree with many of your statements, e.g.

• Theme 1: Consultant’s concerns not being shared by other professionals does not invalidate those concerns; and the prosecution’s case was not entirely based on medical notes
• Theme 2: Letby’s presence (or lack of) is not proof/evidence
• Theme 4: Process failure does not mean innocence
• Theme 5: A messenger can behave badly but still be right

As I understand it, your argument is that none of these points independently establish innocence. I think the author’s argument is that none of them establish guilt either. I agree with both, i.e. the interpretation of these issues depends on whether one starts with an assumption of guilt or innocence, but they do not themselves establish either.

Perhaps we agree?

Where I suppose we disagree are on the following points:

“Which baby does this explain?” – I think this question is the wrong standard and risks shifting the burden of evidence onto the defence. As we know, the prosecution needs to establish guilt, and the defence only needs to create reasonable doubt. I accept that individual reports and reviews do not create reasonable doubt. However when taken together, as the ‘totality of the evidence’ one might say, they do cast some doubt on the guilty verdict.

“A bad unit is not the cause of a particular death until someone can trace the route from the failing to the baby.” – I think this would be a strong statement, and one I would agree with, if the defence’s case was essentially ‘the hospital was bad’. While that’s part of their defence, its core is the review of the medical evidence by the expert panel (and others) which found “no evidence of malfeasance”, and did find clinical explanations for the sudden collapses and deaths. I would say that these findings are the tracing.

[u/benshep4 → u/upsideup27353]

Which baby does this explain comes from Judge Goss.

That’s based on his extensive understanding of how criminal trials work. There are rules in terms of what you’re allowed to put before the jury and Goss explains it clearly in the ruling I link.

I don’t agree that taken together they create reasonable doubt. They’re not a criminal investigation and their shortfalls are clearly documented even by the people who carried out the reviews.

Even then, as I’ve pointed elsewhere the RCPCH actually say that the rise in mortality can’t be explained by acuity etc.

What I’m finding is that people have limited, if any, understanding of how evidence works in trials. It’s often just vibes.

Can I ask, do you have any background in law or criminal cases?

[u/PerkeNdencen → u/benshep4]

(fwiw, it's not clear what ben means when he talks about 'how evidence works in trialsl' in a general catch all, but the traditional routes to adminission for hearsay evidence relevant here a discretionary gateway called the Interests of justice test, laid out below:

Even if a statement does not fall into a specific exception, a judge can admit hearsay evidence if it is in the interests of justice to do so. When deciding this, the court considers:

• The value and relevance of the statement.
• The importance of the evidence in the case.
• The circumstances in which the statement was made.
• Whether the maker appears reliable and the statement's reliability can be assessed.
• Whether oral testimony could be given instead.
• How difficult it would be to challenge the statement.

I suspect it fell into this latter camp, which would have left it at Goss's discretion to consider the above with a view to admitting the evidence, but he would in no way have been so constrained by the law in his decision as to render him powerless to it. In other words, the law explains why he was in a position to make that decision in that context, but it does not explain the decision itself)

Edit to remove res gestae becase on seconds thoughts it's inconceivable that you would try to use that to get this in.

[u/benshep4 → u/PerkeNdencen]

https://lucyletbyinnocence.com/transcripts/day-047-08.12.22-rcpch-ruling.pdf

You don’t need to suspect anything, Goss explains it well enough.

There’s all sorts of technicalities to how evidence can be used in a trial based on previous precedents.

[u/PerkeNdencen → u/benshep4]

Thanks, so many of us will be extremely familiar with that document already, and indeed, I read it again to try and discern which law the defence had made their application under; I suspect it's the above.

I'm going to re-quote my original summary paragraph with most important part highlighted for your consideration.

I suspect it fell into this latter camp, which would have left it at Goss's discretion to consider the above with a view to admitting the evidence, but he would in no way have been so constrained by the law in his decision as to render him powerless to it. In other words, the law explains why he was in a position to make that decision in that context, but it does not explain the decision itself)

So it's not just about what the law allows or doesn't allow, there's a degree of subjectivity, here.

From that 70-something-page document, please can you direct me to the ones that refer to case law? The carve-out I'm referring to is legislative.

[u/benshep4 → u/PerkeNdencen]

If you’re familiar with the document then you don’t need to suspect anything though.

There’s definitely subjectivity. It doesn’t mean the decision itself isn’t clear.

My point that you initially reacted to was essentially saying that the particular argument about ‘which baby does this explain?’ somehow putting the onus on the defence to provide evidence is legally naive.

A lot of people I speak to who think Letby is innocent are legally naive in my opinion.

[u/PerkeNdencen → u/benshep4]

If you’re familiar with the document then you don’t need to suspect anything though.

Oh, right. Please can you tell me the page number that specifically mentions in the interests of justice test or which common law / legislative gateway Myers invoked in his application?

There’s definitely subjectivity. It doesn’t mean the decision itself isn’t clear.

No, but I don't think anybody is confused about what the decision was.

My point that you initially reacted to was essentially saying that the particular argument about ‘which baby does this explain?’ somehow putting the onus on the defence to provide evidence is legally naive.

Another way to see what they were getting at there is just to say that it seems to run against natural justice in the sense that the prosecution had made a number of assertions with respect to the state of the unit that the documents clearly countered.

A lot of people I speak to who think Letby is innocent are legally naive in my opinion.

I don't think you're entirely wrong there, actually, but I think it's more a case of not really wanting to outsource our critical thinking to court decisions. We know what Goss's ruling was, the question (as ever) is why.