This page contains Mr Justice Goss's Directions to the Jury and prior discussions between the Judge and Counsel.
(In the absence of the jury)
JG [Mr Justice Goss]: Mr Myers, thank you very much for the document that you sent through or the documents Mr Myers sent through on behalf of the defence --
BM [Ben Myers KC]: My Lord, thank you.
JG: -- in relation to expert evidence. Could we begin, please, with directions of law relating to circumstantial evidence? I'm only saying this because the conventional directions you'll be able to read from the document that I will provide when we've had these discussions. But I just want to ascertain from you both where we are in relation to what should or should not be said in my preliminary directions so far as circumstantial evidence is concerned.
On reflection, in relation to this, I am of the provisional view that I should give a simple, bland direction in relation to circumstantial evidence and similar fact evidence without descending to any argument advanced by either side or what I anticipate the arguments will be.
BM: We have nothing to add to that, my Lord.
JG: So I can just focus, and you can consider when you see my draft, you can look at that and see is that suitable for the purpose of a preliminary direction in relation to circumstantial evidence.
BM: We'd be assisted by seeing that. We understand the process where your Lordship is identifying it to us now and the need for that. We'll see the draft and we can assist your Lordship if necessary or appropriate.
JG: Thank you.
NJ: [Nick Johnson KC] Nothing to add to that, thank you, my Lord. The mention of "similar fact" in a sense is the cart before the horse of cross-admissibility, which I understand is an issue between us.
JG: Right. Well, all right. Let's have that issue then. It's cross-admissibility, similar fact --
NJ: It's the same thing.
JG: -- it's the same thing, really.
NJ: We've prepared a fuller document in writing with the authorities, which may be helpful for your Lordship to see before embarking on the argument.
JG: Yes.
NJ: It includes what we hope is a fairly comprehensive list -- or lists, I should say -- of issues where we say similarities arise which merit the cross-admissibility direction, and seeing that in writing may help to focus the argument.
JG: Right. Mr Myers, you've got this document?
BM: We don't have it, my Lord, so we need time to consider what this contains.
JG: Yes, right. Just so that I'm clear in my mind, and I'm probably being slow in relation to this, what I was proposing to do was to give a relatively straightforward direction in relation to circumstantial evidence without descending to saying what the respective arguments are in relation to that and then to give a relatively simple direction in relation to the jury if they -- the jury being able to use the evidence in relation to some events as supporting evidence in relation to others, but without identifying which --
NJ: Oh yes, we're not submitting that as parts of the preliminary directions your Lordship should be descending into the detail so far as that is concerned, but, as I had understood the position, and it may be I've misunderstood the position, but as I'd understood it there is some controversy about whether the jury should be allowed to engage in that exercise at all.
JG: Right.
NJ: It may be that I've misunderstood it.
BM: We would be assisted, my Lord, perhaps to have sight of the draft directions so we know precisely how your Lordship would deal with it and to have sight of the material that the prosecution have prepared and then we can see exactly what it is that we're talking about. I don't want to make agreement to something if I've misunderstood anything or if there are additional points I need to raise.
JG: Right. Before I send you the document to look at, I can read out this passage that I would propose to say -- and this is subject to any modifications that are requested. I'll put it in context:
"Circumstantial evidence gains its force from a consideration of all the circumstances. You do not examine each piece of evidence separately and find that considered on its own that is not enough and move on to the next piece of evidence, which again, on its own, is not sufficient. You must first consider, in relation to those facts and matters that are not admitted, which of them have been proved so that you are sure of them, taking into account the completing arguments in relation to the proper interpretation of those facts. You then decide whether the combination and cumulative effect of all the admitted and proved facts and circumstances lead you to the inescapable conclusion that the defendant committed the offence or offences you are considering. You must be alert to distinguish between mere speculation and properly reasoned conclusions and inferences based on evidence.
"Speculation amounts to no more than guessing or devising theories of your own which are not based on the evidence, which plainly is something you must not do. If you are sure that, for example, in the cases of the two babies whose feed had insulin added to it, [Baby F] and [Baby L], and that someone on the unit was intent on harming those children, then you should consider how likely it is that, in the cases of other babies who collapsed or suffered unexpected events, they did so as a result of some unexplained or natural cause rather than as a consequence of some deliberate harmful act such as the injection of air or interference with breathing.
"If you conclude that this is unlikely then you could, if you think it right, treat the evidence of those insulin events and any others, if any, which you find were a consequence of a deliberate harmful act as supporting evidence in the cases of other babies. When deciding how far, if at all, the evidence in relation to any of the cases supports another or others, you should take into account how similar in your opinion the allegations and other circumstances relating to their collapses are. The defence say that there are possible causes for many of the collapses other than an intentional harmful act, that the prosecution expert evidence cannot be relied on in terms of providing explanations for many of the collapses, and that there is insufficient evidence to lead you to the conclusion that these events were related and were a consequence of any harmful act by the defendant rather than a series of unrelated collapses that ended in some cases in death."
I know there's an awful lot there, but that is the gist of what I'm proposing to direct them so far as that is concerned.
BM: We're grateful to your Lordship for providing us with that. That's helpful for us to then consider, but also to consider in light of whatever it is -- I don't mean that in any pejorative sense -- the prosecution have prepared for this.
JG: Exactly, yes. Both of us -- we've all got to look at that.
BM: And we can reflect upon the detail of your Lordship's draft direction and any observations we have as to that.
JG: Yes, exactly. Absolutely, Mr Myers. So if I could then move on in relation to the elements of the offences of murder, which we canvassed briefly yesterday. I'm not going to read out the section in relation to causation, you can see what it is, but again any observations, comments, corrections that either of you wish to make. I address each in turn: unlawful act or acts, causing the death, intention.
Then I set out a route to verdict by way of the questions they should ask themselves and then I do the same for attempted murder. It's a document that currently only runs to just over seven pages, so it's not that long, but obviously you'll want to consider it very carefully.
BM: We would like to.
JG: I have also prepared some directions in relation to what I call "evidential matters", which I will give during the course of my main summing-up, in which I've incorporated, essentially, I hope, all those matters that you have suggested in relation to expert evidence. My only query, as you will see, is that I've square bracketed one of the matters that was highlighted. It's the one that is the extent to which any material upon which the expert's opinion is based has been reviewed by others with relevant expertise and the views of any reviewer on that material, because I didn't see that as applicable in this case.
BM: It possibly applies, and this is what we had in mind, with some aspects of Professor Arthurs' evidence, with his --
JG: That's what --
BM: -- his survey. Whatever the qualities of that, and that's something to be borne in mind, and it was dealt with in cross-examination, it is something that he did which hasn't gone through a process, for example, that one might ordinarily have with peer review and publication.
JG: Now that you've reminded me, I understand where that is. Well, I will make it clearer in relation to that.
BM: I'm grateful, my Lord.
JG: I will retain it but make it slightly clearer. When I come to review Professor Arthurs' evidence in relation to that, I will make it plain that that is an issue that they'll have to consider.
BM: We're grateful, thank you.
JG: All right.
NJ: I've emailed the document to everybody, including your Lordship's clerk --
JG: Thank you very much.
NJ: -- knowing your Lordship's fondness for having these things on paper (handed). This looks a lot worse than it is. Most of it is authorities which I've summarised in a couple of pages.
JG: Thank you very much. I'm very grateful for that. What I'll do then is make that minor amendment to the expert evidence direction, but that is less important at this stage. I want, first of all, to try and finalise the preliminary directions.
BM: One matter I've reflected upon with regard to causation is the question of what's sometimes described as unidentified or uncertain cause which can arise. I'll be assisted by receipt of your Lordship's draft direction, but it may be there are some matters that I would like to or we would like to raise with regard to that. I don't know what the direction says.
JG: No, no, exactly.
BM: But when I've seen it, it may be that's something that we would wish to raise with your Lordship for discussion.
JG: You can raise anything, Mr Myers. That's why we go through this process, as you know. Obviously, I'll be grateful for any representations that are made; I can't promise I will necessarily agree with them or all of them, but it will be helpful. So I will just make that minor amendment and within a very short time you'll receive -- well, I'll send you the first set of directions in relation to the offences and then the evidential one I'll get to you very shortly as well.
BM: Thank you, my Lord.
JG: Thank you very much. I don't know how long -- I'm just wondering whether there's going to be any purpose in sitting before 1 o'clock. There may be.
NJ: There's quite a lot to read if anybody wants to assimilate it. It's not actually very complicated, but the lists -- well, I'm sure my learned friends will want to review the lists before we get to the stage of anybody ever speaking as to them. They're really just -- they appear at the beginning of the authorities bundle, pages 1 to 3, I think.
JG: Right.
NJ: It's the similar fact point.
JG: Features in common.
NJ: Correct.
JG: I have that, thank you very much. Well, I certainly say that I'll want at least half an hour.
BM: I suspect we would be assisted by dealing with this after lunchtime because there seems to be a lot to read, unless there's a positive reason to return to court before then. We're all in the building. There's your Lordship's directions to consider and the material provided by the prosecution.
JG: 2 o'clock.
BM: Yes, we'd be grateful for that. Thank you.
JG: Right. So the court will not sit again until 2 o'clock. Thank you very much.
(11.58 am)
(The short adjournment)
(2.00 pm)
(Delay in proceedings)
(2.38 pm)
JG: Mr Johnson and Mr Myers, thank you both very much for the documents that you've submitted to me. Mr Myers, you'll appreciate I've only had yours for literally a few minutes.
What I thought it would be helpful to do is to indicate I've read what Mr Johnson has submitted. Thank you for clearing up the typing errors, which I've -- because I don't see them on the screen.
NJ: We all read what we think we've written.
JG: Apparently it is a well-known feature of the brain. That's why I like a lot to be put on paper because apparently the brain receives it and digests it more effectively than on the screen. I've been told that by people who know these things. So thank you for those. I've corrected those.
Then there's the one where you put the footnote in relation to depending on the argument that I think we're going to have now about cross-admissibility. Can I just confirm that otherwise there is nothing in relation to legal directions 1 that you would wish to make any representations about?
NJ: It may be that I'll answer some of the points my learned friend wants to make, but the only thing that occurred to me after I'd sent the response was -- and I can't now remember because it's occurred to me so recently, and I just can't carry all this in my head at the same time, is whether your Lordship made a specific mention of the fact that the expert evidence was uncontradicted, because plainly that is something that needs to be said, but I can't remember whether it's --
JG: It's not in that direction.
NJ: Perhaps it should be.
JG: It could be. If I don't say it then I will certainly say it in the body of the summing-up --
NJ: Yes.
JG: -- when I will be detailing what it is each expert has said and I'll just say, "That is the evidence on that issue" --
NJ: Yes.
JG: -- which I think is more appropriate than --
NJ: Yes. Well, these things are always stylistic. I was anxious that the jury were told explicitly that they shouldn't accept any prosecution expert evidence simply on the basis that it's uncontradicted --
JG: Oh.
NJ: -- by defence evidence.
JG: They shouldn't accept it because of that?
NJ: Yes.
JG: Well, I agree, that's right. I'll make it clear. I'll just make it clear that although there is no evidence on behalf of the defence they should not therefore understand it to be uncontradicted and they still have to examine it in the way that I have then set out.
BM: We're grateful to my friend for that. That's the type of issue that lay behind our concerns in the note we sent through, so we're grateful for that, my Lord -- sorry, the note on expert direction.
JG: Well, exactly. You see, I have incorporated everything that you wanted to be said. I've specifically identified the Professor Arthurs point.
BM: We're grateful, my Lord.
JG: It actually makes it clear what it means, otherwise when it's sort of stated in the abstract the jury may be scratching their heads, thinking, "What's he talking about there?"
BM: We're grateful for the additional time just to look at the material we've received and, again, I apologise for the late receipt, although as your Lordship will imagine, we were responding to this right up to the wire.
JG: Don't worry, there's no need for an apology, Mr Myers. If we need more time, we'll take more time.
BM: I'm obliged. There aren't many issues that we raise. We do say respectfully the note we've sent through is to the point, but that was because of time, not because of discourtesy. There is a note with regard to the draft summing-up.
JG: That's what I have here. As I say, I haven't been able to go through it in detail.
BM: It may assist if your Lordship has the opportunity to do so because it may be there are items there that would require less by way of explanation from the defence or certainly your Lordship would be able to identify better any points the court wishes to raise with us as to what we want to say rather than me to go through it for the first time for your Lordship as I stand here now.
I should say, the point about unidentified cause and where we cite the two authorities, Cannings and Henderson, we certainly don't suggest that anything like the extent of the text that we've drawn from them, just by way of explanation, should be included.
JG: But it's a topic itself.
BM: It's a topic and it was just important that your Lordship saw why it was we were raising it. In fact, what we would seek is relatively brief, conceivably, but we thought it important the court should be seized of what we base it upon.
JG: Exactly, and there's no burden on the defence, evidential burden, in relation to establishing potential unexplained, unforeseen...
BM: But it may assist your Lordship to have time because this has come so recently.
JG: Well, I think I'll be able to deal with it as and when.
BM: Very well.
JG: But can I just therefore confirm that apart from the matter in relation to expert evidence that we've just discussed and the refinement there, or the refinements, the one Mr Johnson raised and the one you've raised there, and cross-admissibility, there are no other parts of the summing-up that you wish to make submissions about?
BM: There are three areas, my Lord. The first is with regard to a line in paragraph 4, which we have used the highlighting function on.
JG: Yes, about, "You do not have to be sure of precisely how or when any baby was deliberately harmed"?
BM: Yes, there's matters we raise with regard to that. We can enlarge on that if necessary. Where paragraph -- it says paragraph 8, it should say paragraph 7 in our note, my Lord.
JG: Right, circumstantial evidence.
BM: With regard to paragraph 7, we noted the section in square brackets where your Lordship has identified various aspects of the prosecution case --
JG: Yes.
BM: -- that are relied upon.
JG: I put those in square brackets because I'm not proposing to have that at all --
BM: Very well.
JG: -- that section in square brackets.
BM: That's helpful.
JG: Sorry, I didn't make myself clear. That was the discussion that we had and I should have removed it but I didn't.
BM: On the side of caution we'd responded to that but we don't need to so I move on from that.
The other matters with regard to paragraph 8 -- the other matter with regard to paragraph 8 is the reference to the insulin counts where the court or where your Lordship's draft deals with an example before getting into the way that similarity can apply. It's entirely of course a matter for the court how it chooses the examples that it does but our concern, naturally, perhaps particularly so early in the process, is that that aspect of the direction has a great symmetry with what the prosecution will lean upon or articulate as a principal focus of their case. It's not done with that in mind but, as it happens, it chimes with it very powerfully and causes concern to us that if the first matter the jury hear in terms of, in effect, ex tempore comment upon the facts is a feature which has a very great symmetry with the main thrust of the prosecution case, that may be the most striking feature they take away from that and it may influence their view of how they approach it rather than either no example given or something more anodyne.
It might seem natural the defence would raise that in this situation, I understand that, that may be how it is regarded, but just, out of concern for us, that the jury focus upon the direction rather than a factual example.
JG: Rather than the application of the direction to a particular fact?
BM: At that point in that way, yes, because they will, we anticipate, hear that, they'll be taken there fairly swiftly.
JG: I see the point. I put it there because it's -- it was accepted by the defendant that unless there was some pharmaceutical error in the making-up of the bag or someone else was responsible then this was a deliberate harmful act. But I take your point. I'll hear what Mr Johnson says. I understand why you're saying it.
BM: We're grateful for that, my Lord.
JG: It's perhaps something that it is appropriate to put in this document before each counsel has addressed the jury.
BM: That was our concern, just that, my Lord. I'm grateful to Mr Johnson, who explains that with regard to the prosecution's document "Features in common", which sets out the counts with features they say are in common, that isn't something he was seeking to import via the summing-up. I had misunderstood and thought it might be.
JG: I hadn't understood it in that way. If that's what was intended, I wouldn't have been with him in relation to that.
BM: I'm grateful. It isn't what was intended.
JG: No.
BM: So that means that in fact the matters remaining are the question of the extent to which the court pursues a formal cross-admissibility direction in the way the prosecution seek and the question of how a direction on unidentified cause would be incorporated in the summing-up if your Lordship saw fit to include that.
I should say with regard to the way that the circumstantial evidence is dealt with in paragraph 8 -- I have put this in our point 5 in our defence -- the defence, I will put it this way, are neutral on the direction currently as put by your Lordship where you say this, my Lord, just towards the end of paragraph 7: "When deciding how far, if at all, the evidence in relation to any of these cases supports another or others, you should take into account how similar in your opinion the allegations and other circumstances relating to their collapses are."
With respect, it seems to us that that properly approaches the way that it can be regarded in terms of the similarity and following on from what your Lordship has said about circumstantial evidence, that applies. We do object to the approach the prosecution seek in this case, given its nature, and that's what lies behind the dispute as to cross-admissibility. To assist with that, we've furnished the court with an argument in fact that we drafted some months ago now before the trial began dealing with this issue and our concerns as to it. That's something we'll come to in due course when your Lordship has heard what my learned friend has to say about it.
JG: Right.
BM: We need to hear the application and no doubt your Lordship does, but those are the matters arising.
JG: Do we need to go through the formal process? Because this is now the evidence in the case. So the evidence is before the jury, it's the question of the way in which the jury should be directed as to how they may and may not use this evidence. Aren't we beyond the stage as to the basis upon which the evidence is admissible, be it as evidence of propensity or cross-admissibility by reason of the coincidence factor? Aren't we beyond that? It's now -- we've got to identify, as I've just said, how the evidence in relation to one count and one set of circumstances may or may not be relevant to any other count and circumstances.
BM: The jury would need assistance with that however it's dealt with.
JG: Exactly, yes.
BM: It's not something that can be left hanging, we recognise that.
JG: That's why my paragraph 7, which begins down at the bottom of page 4:
"If you are sure that, for example, in the cases of the two babies..."
And then it's the insulin. Let's assume we remove that and we don't identify the insulin as being the starting point, but just say:
"In relation to [a particular baby] and the circumstances of the collapse and death of [a particular baby]..."
Without identifying anyone, then go on. Is there any objection to what then follows?
BM: No, we don't --
JG: As I say, removing any reference to insulin.
BM: No, the position we've put would seem to be only so helpful, but we don't specifically object to it. We are neutral and that's what matters. We don't raise an objection as to it. It's difficult for us to formulate how best the evidence could be used against the defendant in these situations.
JG: Absolutely. That's why I think it has to be anodyne at this stage.
BM: And given the huge number of variations in facts across the different charges, which is what lay behind our original concerns, and too rigid an application of one to another when they're perhaps absent the links between counts 6 and 15, but outside those there are so many different factual variables that any direction that is too rigid in its application fails to accommodate the discrepancies that arise and the different questions the jury have to approach. It seems to us, we respectfully agree, the way in which your Lordship has approached that, given that the jury need to know how they can approach this, gives them direction on that whilst leaving it suitably textured that they can take account of the discrepancies and the differences between the counts insofar as they find they exist.
So for that reason we don't seek to go beyond what your Lordship has drafted.
JG: All right, thank you, that's helpful. Obviously you can respond to anything Mr Johnson says, Mr Myers.
NJ: Well, my Lord, so far as that final issue is concerned, which is really the most thorny issue to be resolved before the summing-up and speeches, we submit that leaving things as they are would be wrong. I say that with respect, but by reference to the decisions of the Court of Appeal, particularly in Suleman(?), and your Lordship will find the requisite or the appropriate section of the judgment at paragraph 70, which is page 51 of the bundle we have just submitted this morning.
JG: Page 51?
NJ: It's page 51 in the red numbering.
JG: Yes, paragraph?
NJ: Paragraph 70. The second half of the paragraph, which says:
"It seems to this court essential that the trial judge and the advocates give explicit attention to these matters before speeches in order to eliminate the risk of misunderstanding by the parties or by the jury."
And this is taken up in Adams and that's dealing specifically with the question of cross-admissibility and the important thing is in the context of the bad character matrix, if I can use that word, paragraph 18 of Adams, which is page 57 of the bundle. The point here was that no bad character notice had been served by the Crown and in the judgment of the court it was said that because that was the position adopted by the Crown:
"The jury ought to have been directed that in considering each count they would have regard only to the evidence which was directly relevant to that count and should ignore evidence relating to other counts."
And by obvious analogy, we submit that if that is not the position, in other words if cross-admissibility is a live issue, then the jury must receive explicit direction as to the use they can make of this material. It's particularly important, my Lord, because, just going back --
JG: Well, paragraph 18 comes in the context of paragraph 17.
NJ: Yes.
JG: "No notice was given by the prosecution who wanted to rely on any evidence."
NJ: That's what I said, my Lord. That was a case in which there was no notice, therefore the jury should have been told that they could only look at cases in compartments, whereas we are submitting that because the opposite is the case, the jury have to be given a specific direction as to the use that they can make of this material.
JG: Right. Can you provide me then with a proposed draft as to what I should say?
NJ: I can certainly -- yes, not immediately.
JG: No, but I mean I think it would be helpful if you formulated exactly what you are -- how you're saying it should be.
NJ: Yes. It may be, my Lord, that there is quite a lot of help to be derived from the decision of the Court of Appeal in Freeman and Crawford, which is page 20. I am going from my summary, but I think it's probably paragraphs 17 through to 20 of Freeman, which is of the bundle to be found at page -- it's the highlighted part, pages 26 and 27.
JG: Yes.
NJ: So the admissibility issue is dealt with by reference to the decision in Chopra at paragraph 17. Then over on to page 27, in that particular case the sole question was whether in such a case bad character evidence met the criteria in 101D and, in our case, 101G.
And then -- and this is where it ties in, in effect, with the draft direction that your Lordship sent us earlier:
"The evidence may provide strong circumstantial evidence that the offences were committed by the same person", and so on.
That's really the point that the direction has to cover.
JG: Exactly, yes.
NJ: So it's very much along the lines of what your Lordship has included in the context of circumstantial evidence, but goes beyond that and should, we submit, go explicitly beyond that because it has to cater for the -- it has to take account of the direction that the jury have to consider each count separately. So in other words, separate verdicts on each count, but perhaps a word of explanation that that doesn't mean that the evidence you heard in blocks can only be heard in those blocks and then give examples of why that might be the case.
So I'm sure we can come up with a suggestion. But really, the main thrust of the point is that there are so many cross-case similarities and that's where our 13 heads of similarities come in.
JG: Yes, but I can't start doing that.
NJ: No, no.
JG: No.
NJ: It may be that the most apposite demonstration or elucidation of the issue or the principle is the one that we have included in our application, namely it's a recognition of the fact that the coincidence of presence and event is in itself probative evidence. So one is looking at the evidential position across allegations.
JG: Yes.
NJ: Or another example might be, and it's another one we've put into writing, counts 17 to 19 [Baby N]. Looking at count 17 on its own might raise more questions than answers, but making the point that the jury aren't simply confined to looking at count 17 on its own, they can take account of what happened on 15 June as well and put that into the context of the case overall.
JG: Right.
NJ: Clearly there needs to be a bit of thought given to it.
JG: I'll hear what Mr Myers says in relation to the general proposition.
BM: My Lord, the situation as far as we perceive it to be in Adams was that the jury hadn't been given any or any adequate direction at all. I look at paragraph 13, which lists the grounds of appeal and the first was that:
"The judge had erred in not giving the jury any direction about whether, and if so, they could rely on the evidence of each complainant [they were sexual allegations] when considering allegations made."
That's the context in which this decision took place. And if your Lordship goes through it, looking at the sections my learned friend refers to, particularly paragraphs 18 and 19, the problem created was that there was no direction given for the jury to understand how in a case when there were a variety of charges that may after to have some applicability one to the other, how they should do that. And paragraph 18 concludes by saying:
"No such direction was given by the judge." This is to how it could be used on any count, one on the other:
"Indeed, he did not give any direction to the jury at all with regard to whether, and if so how, they could take account of evidence relating to one count when considering other counts and in particular whether they could take account of either complainant's evidence when considering the allegations made by another."
And following on, the court identified at paragraph 19:
"The only direction which the judge gave about how the jury should approach the different counts was a standard direction to say they should consider the case against the fourth defendant on each count separately."
It goes on to say: "They didn't tell them, in other words, how to look across them."
The direction that your Lordship has drafted does do that and it does that, and we put it this way, in an open, textured fashion in that it identifies a way of approaching it without being overly prescriptive, which we submit is a problem if it is because these counts are different.
We do observe that whilst the prosecution have produced the document that your Lordship has, the features in common, as it's put, between the counts, your Lordship will notice they're not in common as between every count across the whole of this indictment, they're various in fact, there are some themes that repeat, but one is not a carbon copy of the next. And in our submission, it's important not to approach this as if they can be applied in that way, which goes beyond what's necessary, so we submit that the direction as drafted at the moment deals with the assistance the jury would require.
JG: Thank you, Mr Myers.
Mr Johnson, I'm not against you, but I would be assisted by a proposed reworking of my basic direction incorporating the matters you say should be incorporated.
NJ: Certainly.
JG: If you could provide that. I will also independently consider an amended version and then we could perhaps exchange those --
NJ: Yes.
JG: -- obviously with Mr Myers and Mr Myers can respond.
NJ: There are two points, my Lord, we submit. The first is the taking the step back completely point and looking at evidence across all the counts. The second point is the one --
JG: So the unlikelihood of coincidence that she was on duty on every occasion an event --
NJ: Exactly. It's not -- we're not quite... The fact that she's on duty every time, the fact that Lucy Letby is on duty every time something that we say is a criminal offence happens would be conclusive proof for obvious reasons. But there's very much a danger --
JG: Assuming that they are non-natural events.
NJ: Yes, absolutely, if they are criminal offences. But that could be seen as putting the cart before the horse, so we don't advance that as an argument in itself.
One of the important points, and it's one that I've set out in writing at page 6 of our submissions, it's under paragraph 7.4, which we respectfully submit can be derived from Suleman, which is if -- this is the more obvious point that if the jury conclude that Lucy Letby is guilty of any of these offences taken in isolation, then that, to use a metaphor, could be the first domino that starts then to knock down the row of dominoes. But we do not restrict ourselves to that approach because we submit that, taking as an example the insulin cases, if the jury concluded that they were both poisonings and because of all the circumstances of each of those offences, viewed separately and together, there are in reality only two potential possible culprits and they look at the circumstances of, say, [Baby O] and conclude that that undoubtedly was a crime, and putting that together with the two insulin cases, that removes the other potential culprit, they then have evidence of three -- evidence in three cases whereby combining the circumstances of each together they've not made any decision as to whether has Lucy Letby committed any of those offences, but they have put the circumstances of the three offences together and can say an offence has been committed in each of those cases because of the combination of evidence.
They look at who was present, they decide that it has to have been somebody that was on the requisite shift and that she is the only culprit, that doesn't involve making a decision in a single case and knocking down further dominoes. That involves putting together the circumstances of three separate cases and because they are cross-admissible for the reasons we have set out in writing, concluding that the only reasonable inference to draw, once they've decided that crimes have been committed, is that Lucy Letby is the culprit. They then take those three convictions, so two convictions for attempted murder and one conviction for murder, they then approach the rest of the exercise on the basis that what they have in the dock is a woman who has murdered a child and tried to murder two others and then look at all the circumstances of all the other offences.
They wouldn't be entitled to do that if there was no bad character application, but they plainly are entitled to do that on the facts of this case. So that is the best I can do to explain what the principle here is and it's just coming up with a way of --
JG: It's formulating an appropriate way of conveying this in as simple as terms as possible.
NJ: Exactly, yes.
JG: Of course there's the Freeman point which, if my recollection is not failing me, was really following -- there was a case called XYZ, wasn't there, whereby in determining, I think it was three incidents, the jury didn't have to be satisfied that they were sure in relation to one --
NJ: Exactly.
JG: -- in order to determine -- this is the difficulty of incorporating it. I've understood exactly what you're explaining in relation to them being satisfied so that they're sure in relation to 1, 2 or 3 offences, then they can use that in relation to other ones if they consider it's appropriate. But they don't even have to get that far.
NJ: No, they don't. I'm thinking on my feet, but the best way of giving an example might be to use the facts of Freeman, actually. I'll see.
JG: I think we all need to think about this in more detail.
NJ: I was going to respectfully offer for your Lordship's consideration the possibility that the jury might be told to come back at 2 o'clock tomorrow, just so that we're not -- it would be a shame to make a mistake at this stage, which we regret later under pressure of time. It's not going to make any difference to --
JG: It's going to make a difference to my personal situation --
NJ: I'm sorry.
JG: -- because I have to leave the building by 2.30.
NJ: 12 o'clock then.
JG: I was going to say, or even 11 o'clock or 12 o'clock. By 12 o'clock, yes. Because when I do actually deliver this, it's only going to take 20 minutes.
NJ: Yes.
JG: Can we decide on that, that the jury should be told to be here for 12 o'clock tomorrow?
BM: By all means. However it works best for your Lordship and the court.
JG: Thank you very much. Then I think, Mr Johnson, you will work on how you would propose the direction should be formulated. Mr Myers, you can work on how you would propose the direction could be formulated if it differs in any way from mine as amended.
BM: Yes.
JG: And I will work on mine. Then we can exchange drafts and see where we get to.
NJ: There's another issue I would like to raise if I may.
JG: Yes, certainly.
NJ: That was the defendant's evidence that she has PTSD. It's something that was included in the email, it's an issue that was included in the email that I sent to the court at about 6 o'clock last Friday morning, where I raised the question of agreed evidence, if your Lordship recalls, which resulted in Mr Myers saying something to the jury about the evidence of [Father of Baby N].
JG: Exactly. Yes, this was another topic, yes.
NJ: We submit that there is no -- we don't understand what the relevance of PTSD is in this case. That's the starting point. We submit it has no relevance. That point was accepted by the defence at a pre-trial hearing when we asked the question, because we were going to get some more evidence ourselves, but we were told that the only relevance was as to trial management and pre-trial issues. It was introduced by the defendant in examination-in-chief and I didn't explore it deliberately.
Her assertion that she has PTSD is not admissible evidence and if nothing further is said about it I, on behalf of the Crown, will not complain. But --
JG: Can I stop you there? Because as you were addressing me and reminding me of that issue I was thinking it's a dangerous path to go down at this stage and I would propose, subject to anything Mr Myers may say, simply to make no reference to it.
NJ: Absolutely.
JG: I wasn't -- in my summing-up, I wasn't proposing to refer to it at all. Mr Myers?
BM: No.
JG: I shall refer to other things she said but not a diagnosis of PTSD.
BM: No, that's not something (inaudible) questioning, actually, and it's not something we propose to refer to and it's not something we asked about specifically. The point that we sought to develop --
JG: There's no complaint.
BM: I understand that.
JG: I will remind the jury of her evidence in relation to her stresses and isolation and that was -- and the various explanations she's given about why she said things, did things, didn't say things, wrote things, didn't write things, things like that, but I will not refer to post-traumatic stress disorder at all.
BM: Nor would we, my Lord, nor did we intend to or were alert to that.
JG: I think we are all agreed om that.
BM: I have the passage here with me in fact.
NJ: It was inserted by the defendant, not by my learned friend.
JG: There's no criticism of you, Mr Myers.
BM: I understand that, my Lord, I understand that. We do understand that. I do rely on what's described as the impact and her anguish in the situation she found herself and how she struggled and how she had to have help from her GP -- she said that, she said she was depressed and couldn't sleep -- but we don't extend that and didn't propose to extend that into talking about PTSD.
JG: No. Thank you, Mr Myers. I hadn't anticipated you would and I wasn't going to refer to it anyway. So that will not be referred to.
NJ: The other point I would like to ventilate is the other agreed evidence that may have been unagreed in the witness box.
JG: Yes.
NJ: There has been no intervention by my learned friend to suggest that that other evidence, in other words evidence other than [Mother of Baby N] and [Father of Baby N], that that was agreed by mistake. That is something I will mention. If my comment is intended to be met by my learned friend in his speech giving the defendant a bye on that as well, I would like to know in advance.
So in other words, I phrased that rather inelegantly, if my learned friend is going to say all that was a mistake as well then I must be entitled to know that before I decide what I'm going to say.
JG: Otherwise you'd be making a false point essentially.
NJ: Exactly.
BM: My Lord, I know my learned friend didn't mean "given a bye" in any pejorative sense -- well, I assume he didn't, but no, that's not what I'm about to do. We've dealt with that one particular issue because, as the court saw, that caused us particular concern as it was unfolding and we accepted the situation there.
JG: You will have seen in my draft, paragraph 3:
"The evidence of witnesses that was read to you as agreed evidence [line 5 it begins] meant that the defence did not want to challenge anything the witness said. On a few occasions a part of the evidence of a witness which was read to you was then disputed by the defendant in her evidence."
I don't make any comment other than to say in those instances those witnesses fall into the same category as the disputed evidence of a witness who gave oral evidence. Mr Johnson will want to say that is a consequence of --
NJ: Absolutely. Given what my learned friend has just said, we submit that your Lordship should be specific in that particular direction in confining that to because the defendant did from time to time --
JG: In the cases of [Father of Baby N] and [Mother of Baby N] and, yes.
NJ: Yes, because in other cases the defendant arguably sought to row back from having agreed evidence and the direction in the form that your Lordship has hitherto drafted would cover those eventualities as well, which we now know it shouldn't.
JG: Yes, they would embrace the extra ones. I'll just identify those two, Mr Myers. Thank you very much.
Right. Yes, Mr Pilling?
MR PILLING: Do you mind if I ask a question?
JG: You can ask it. I can't guarantee I'll answer it, but you may ask the question.
MR PILLING: Can the press be provided copies of the written directions?
JG: Is there any objection to that from anyone?
BM: I can't think of one, my Lord. Not that I'm trying to, but I can't.
JG: There will be -- you will be provided with a copy of the finalised written directions. They will be in two parts, as you probably understood. Part 1 will be delivered tomorrow. Part 2 will be delivered during the course of the summing-up, the main part of the summing-up, after counsels' speeches. But you'll have a copy of that as well.
MR PILLING: Can we have part 1 tomorrow?
JG: Oh yes, you'll get part 1 contemporaneous with its delivery.
Now, Mr Pilling, whilst I have you and your attention here, I've had a request, which you may be aware of, for a particular journalist, who says it's on behalf of others as well, that they would like a copy of my summing-up, the script of my summing-up, as I deliver it, so that they --
MR PILLING: I'm aware of it.
JG: Perhaps you can communicate. I will respond through my clerk to the request by declining it because, firstly, I don't think it's appropriate that the media should have a copy of a summing-up before I deliver it. Secondly, I may, and often do, depart in some ways when I'm delivering it and if the journalist is not -- I'm not suggesting malice or deliberate wrongdoing, may inadvertently report the wrong part, what's written, which wasn't said. And then again, most importantly, something I say that may be in the script may be subject to correction by counsel and I have made an error. So for those reasons, it's not appropriate.
MR PILLING: Yes.
JG: Would you pass it on, please? Thank you very much. But certainly as far as the written legal directions are concerned, which is a court document, you may have a copy of that.
NJ: I'm reminded in relation to the correction that your Lordship was going to make relating to [Mother of Baby N] and [Father of Baby N], perhaps the copy that's made publicly available shouldn't include their names because there is an order.
JG: Yes. All right, yes. The names will be blanked out. Thank you very much.
In relation to the second set of legal directions, I have addressed the point that you raised. You haven't had chance to get on to those yet, Mr Myers?
BM: We have looked at them and if anything had been prominent we would have identified it, but we need a little more time to go back over them.
JG: There is no rush. You can have until next week in relation to that. So let's focus on legal directions 1, please, and try and get those resolved.
BM: Yes, we agree.
JG: Put those aside, number 2, until after that. Thank you very much indeed.
As I indicated, Mr Pilling, if you wanted a copy of the reasons for my ruling in relation to the social media timeline -- do you remember? I granted the application in certain terms. If you want a copy of that, I'm not suggesting you do, because it became part of the evidence and I don't think the readers would be particularly interested in that.
Thank you very much. As you know, the channels of communication are open 24 hours a day. I'm not inviting you to send any documents after 11 pm tonight and before 7 am tomorrow, but otherwise, outside that eight-hour period, they will be read and considered.
BM: Thank you, my Lord.
JG: Thank you very much.
I think in fact -- do you think, out of an abundance of caution, we should say 10 o'clock for counsel? And then if it transpires that we don't need that time you can be doing other things.
NJ: Yes, we'll be here anyway.
JG: I think it's better to err on the side of caution. The case will be listed for 10 o'clock; the jury will be told to be here for 12 o'clock.
BM: We anticipate the arrangements are such that Ms Letby will be here in time for that. We'd be grateful for that.
JG: Yes, thank you very much. The familiar faces are there and they're all indicating that's all right. Thank you very much.
Well, thank you all very much. I can't see that we need to sit again this afternoon.
BM: No. There's one matter at the start of our note to your Lordship dealing with paragraph 4. I leave that with your Lordship as to whether anything comes from that. We haven't dealt with it. It was the line about --
JG: Oh yes, of course, sorry, you're quite right.
BM: "If you're sure someone on the unit was deliberately harming a baby or babies, you do not have to be sure of precisely how or when any baby was deliberately harmed."
That was something which was put to one side as we were dealing with it.
JG: Yes.
BM: That is something that, respectfully, causes us concern for the reasons we've set out.
JG: Yes, I've seen those.
BM: Because it lacks -- this isn't said to be discourteous in any way, but it risks lacking a precision in terms of what it is that the jury are applying their deliberations to and we put the reasons for that in the note that we provided.
JG: Yes.
BM: Because we've set it out -- there are seven points as we identified them in our response. The first is the indictment is specific to time and place. And secondly, in most cases, maybe not all, but most cases the allegations are based upon an alleged mechanism or mechanisms and that's been looked at in detail in the evidence and it's important and has been important, certainly up to now, in that is the way the allegations are framed. That's how they were opened and presented.
JG: I have the points. My phrasing is infelicitous and not sufficiently specific. I was relying on the use of the words "precisely" and "how", but I will make it clearer and more appropriate. That'll be in the draft I'm preparing.
BM: Thank you.
If I may add one other thing that relates to this: in the context of the direction that we've been dealing with about similarity, whether that is, as it's currently framed, in the circumstantial section or any amendment to that along the lines my learned friend suggests, that would be potentially fraught with peril. In fact, we are concerned about that because then, if we're moving from the position the prosecution are saying where once the jury have established that the defendant has been responsible for any number of offences, that creates in effect, it seems to us, to be a floating finding that could be attached to whatever they wish to attach it to. That's how it seems to us at this point. To combine that with anything that suggests there is any lack of precision required in what it is they're attaching that to would amplify any concerns.
JG: All right. Mr Johnson, you wanted to say something?
NJ: With respect, we disagree with my learned friend's submissions on your Lordship's paragraph 4. As a very good example of why, we'd point to the case of [Baby H], in which both prosecution experts said that they couldn't --
JG: Identify.
NJ: Exactly, but they were sure from all the circumstances that there were no natural causes that would account for that collapse.
JG: Well, I'll try and accommodate both sides here in a slight redraft. I'm alive to the point.
NJ: There's also sometimes a conflict between Dr Bohin and Dr Evans.
JG: What I'm going to make clear is they don't have to be sure in the case of any particular baby the precise cause or causes because, of course, if you go down that route then you enter problems of some jurors saying, "I think it was this", and one saying, "I think it was that that was the cause". In particular, when we get to the last cases, with the bleeding to the liver and evidence of -- potentially evidence of more than one mechanism in play.
NJ: Yes. The issue is: was there an unlawful -- some unlawful act committed by this defendant --
JG: That was causative of --
NJ: There's no lack of precision. We have nailed our colours to the mast as to when things are happening.
JG: Yes, I can see -- I understand, Mr Myers.
BM: My Lord, it is important, actually. This is, with respect, not an insignificant point and we disagree with the analysis that's being applied. If the prosecution are unable to identify with specificity how it is there's an offence that's been committed then, so far as we are concerned, and of course we abide with the directions as your Lordship finally frames then, but that to us is a significant matter and it is -- in a case where causation is something the jury have to look at, they need to know what it is that took place. If they don't know what it is that took place and if the prosecution cannot prove that then, in our submission, that undermines their case on any given count and it's not good enough to say, "Well, the expert couldn't say what it was in the case of [Baby H]", particularly in a case where there is such a full frontal attack and criticism to the prosecution expert evidence and a case in which the defence have maintained throughout there is a strong element of looking for allegations to support a prosecution theory rather than to reflect the facts. In that situation it isn't, we respectfully submit, appropriate for a jury to be told that it perhaps matters not how it was done or the detail, what matters is that something was done. Because put in that way, that is far too vague set against the allegations that are being made and the issues the jury have to consider in terms of intent and causation. It's so vague that there is nothing factual, potentially, for them to attach those considerations to.
So we don't, with respect, agree with the analysis presented by the prosecution that it's enough to say that something happened at that point. And for that reason we respectfully take issue with the way it was framed in the draft direction because it matters very much, in our submission, precisely how these events took place. Without that, there is imprecision and there is a good deal too much vagueness to be fair for the jury to be able to attach their deliberations on the facts to what it is that's meant to be proved. We can't move so far from the facts that in effect legal directions become so numinous they exist in a vacuum without being solidly applied to a factual allegation. If the evidence can't achieve that --
JG: So are you saying then that in relation to any particular baby the jury have to be sure of a particular causative harmful act in order to convict?
BM: Well, there has to be sufficient certainty as to what took place that they can be sure of an assault and, of course, that the defendant is responsible and to do that it is not insignificant, in our submission, that there need to be facts that that attaches to. It can't be enough to say, "Well, something's happened, the defendant is responsible", and perhaps particularly in a case where the prosecution are seeking to advance this, on the argument we've just heard, which is that if the jury are satisfied on a particular count of the defendant's guilt, and it sounds as if it's not even they have to be satisfied on that, they have to simply be satisfied, on a convergence of counts, that there is sufficient to create responsibility on behalf of the defendant, that can then be applied generally to whichever count they come to next and in our submission that is dangerously imprecise in a case like this. If it is the case that the prosecution cannot establish to the satisfaction of the jury what the facts are upon which their allegation is based, then that isn't sufficient and the jury, properly directed, will be in a position to reach those conclusions.
But starting from where we are at the moment, it is our submission that when the direction says:
"You do not have to be sure of precisely how or when any baby was deliberately harmed..."
Combined with the prosecution's approach, which is it doesn't matter if no particular mechanism can be identified, that isn't good enough, we respectfully observe. It isn't good enough and it puts the defence in an impossible position with a very vague set of allegations then. And we wonder actually what it was we spent the time that we did on the evidence that we did do for 6 months if it turns out no particular mechanism has to be alleged.
JG: Well, it's "no particular precise mechanism". One comes back to the example: what about a no-body murder case, when somebody simply disappears and the prosecution allege this person has been murdered by X and that is why they have disappeared? No mechanism of death can be ascertained there, can it? The jury are invited to infer from all the evidence that that person met an unlawful death and their body has been disposed of in some way.
BM: But my Lord, that's because, we observe, in a situation like that there is something inherently calling for an explanation and out of the ordinary and potentially criminal when somebody has disappeared, for example, they have vanished altogether, and there are other factors which may indicate offending has taken place and no explanation is available for the disappearance of somebody. That is to be contrasted with a situation on the neonatal unit where there are potentially fragile, premature babies for whom it is not extraordinary that it there can be a deterioration or even a rapid deterioration in particular circumstances. So whereas in the missing body murder case it is inherently suspicious that something like that has happened, it is not inherently suspicious that a baby on a neonatal unit might become unwell. In itself it isn't.
JG: In itself, isolated occasions or some occasions occurring, but I think we're -- I understand what your point is, Mr Myers, but I am not going to direct the jury that they have to be sure, for example in the case of [Baby A], for argument's sake, which actually is quite a clear one in the sense --
BM: The allegation is.
JG: The allegation is clear that there was intravenous injection of air. But in relation to other ones where there are -- the differential diagnosis, everything else is excluded, so to speak, of known reasons, and then there are these other possible reasons, distended stomach and things like that, or vomiting, which indicates it may have been milk, they don't have to decide, well, it was definitely air that was put down the stomach or it was definitely milk that was put down the stomach. That's what I'm trying to avoid and that's when I'm saying precisely how.
BM: Very well.
NJ: It's the point we made in our response to the submission of no case at paragraph 22 of our response. Your Lordship has, partially at least, repeated, no doubt unwittingly, what we said. We mentioned no-body murder cases.
JG: Well, I was just thinking of my experience of no-body murder cases.
NJ: Absolutely, but it's paragraph 22. We make the point that in our -- well, how we phrased it then was:
"In all the cases in relation to which the application of the submissions of no case were being made, the treating and expert medical practitioners have all said that in their view there was no natural, non-criminal cause for the child's collapse. That in itself and independently of the evidence of air embolus is sufficient evidence on which a jury may properly consider the question of Lucy Letby's liability. It is not necessary for the prosecution to prove how the children died or what precise mechanism caused their collapses, only that the killings were unlawful, at the hands of the accused, and at the time she had the requisite intention."
And the most obvious example of that as a proposition was a murder case in which there is no body.
JG: Well, there we are. All right. Again, I will draft something. I'm not going to invite anyone else to draft anything in relation to that. I will draft something to which you can both respond. So Mr Myers, I'm mindful of your submissions in relation to that and I will consider them and the way in which, where appropriate, they can be accommodated.
BM: I'm grateful, my Lord.
JG: Right. Anything else? No? Thank you very much.
Just to confirm, the court will be sitting at 10 o'clock tomorrow. The jury will not be here until 12 o'clock. Thank you very much. Does anyone --
BM: Yes, we would like a visit with Ms Letby if we may, please.
JG: A visit before the defendant leaves the building, please. Thank you very much.
BM: Thank you, my Lord.
(3.35 pm)
(The court adjourned until 10.00 am on Thursday, 15 June 2023)
(10.00 am)
(Delay in proceedings)
(10.15 am)
(In the absence of the jury)
JG: Mr Johnson, Mr Myers, can I just clarify with you that the only outstanding issue is the question of the direction in relation to cross-admissibility?
NJ: I believe so.
BM: There was one matter in addition, my Lord.
JG: About not being sure about the mechanism?
BM: Yes, about the degree of precision required in any given case.
JG: Right. Well, can I tell you what I am proposing in relation to that, and I will hear you one final time if necessary in relation to that. It's in paragraph 4. Obviously I'll send it in writing before we complete it. After the sentence "you are not detectives" in line 4:
"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 it may be more than one, nor do you have to be sure of the motive or motives for deliberately harming the baby."
In other words, I am not saying that the jury have to be sure of the precise act. Then I go on to say obviously in my directions in relation to the offences they've got to -- in a murder they've got to be sure of the causation.
BM: My Lord, we're grateful for the court reviewing it and reframing it. There's nothing further that I would add or address the court upon. I recognise there's an impasse, which we reach, as to the defence looking for a direction, looking for degrees of certainty that your Lordship, having reflected upon it, cannot be delivered in that way, but we are grateful for the court -- or should not be delivered in that way.
JG: I'm saying that basically -- but when I come to sum up, I will obviously say, "This is what the prosecution allege the mechanism or mechanisms is or were", and you will obviously address the jury in relation to the fact that they should not reach the sure conclusion that there was a mechanism other than some naturally occurring event.
BM: We're grateful for your Lordship for considering that further, thank you.
JG: Not at all. Now we come to the major issue, and I think now the lines between you are now clearly established. I had actually last night reached the view that I could give a form of similar fact direction in very broad terms, very like my original draft, and say I would come back to this after counsels' speeches.
I then, when I saw -- I was fortified when I saw Mr Johnson that that would be an approach that he may find acceptable rather than not saying anything about it at all. I think they've got to be alerted to it otherwise it's a sort of elephant in the room.
NJ: Yes.
JG: Then I saw what you had said, Mr Myers, which would be essentially, as I understand it, giving a slightly more detailed direction than a very general direction, but then not coming back to it by way of any further direction.
BM: Well, my Lord, we deal with this in paragraphs (inaudible: coughing) of our response and I'm grateful to the court for giving the extra time required to attend (inaudible).
Our concerns were twofold. The first was that the jury do need direction upon this issue at the outset, howsoever that is dealt with. They really do because, as your Lordship describes it as the elephant in the room, it's such an obvious matter they have to have something when they listen to counsels' speeches and for guidance from your Lordship. And we agree with that.
Our second concern when we came to read the prosecution document and of principal focus, I have to say, was the amount of material it contained, and we refer to this in paragraph 14 of our response, where we object to material like this being put into a summing-up (overspeaking) prosecution argument.
JG: You needn't address me further in relation to that. I certainly wouldn't be doing that. That's why I proposed to come back to it after speeches.
BM: Yes, well, we countenance that, my Lord, because we do say in our response at paragraph 15, as it happens, that of course the court and your Lordship remains at liberty -- I put it this way, we put it this way:
"... to comment on the case so far as required in the second part of the summing-up in any event, but not as a direction of law and not in writing."
However, plainly, if it was legal direction that was required later then it could proceed as your Lordship suggests. But we certainly recognise that the initial direction having been given and the jury having received submissions by counsel, then of course it remains within the province of the court to return to that in whatever form your Lordship regards necessary and appropriate.
JG: Yes, well, can I just read out to you, and I know it's difficult when things are read, and you will get these versions in writing shortly for you to consider. These to me seem to be the two alternative ways of doing this.
One is simply to make reference to it in very general terms, tagging it on to the circumstantial direction -- and obviously I've created so many versions of this now that it becomes difficult. But in relation to the circumstantial evidence direction I would end it by saying:
"Subject to further directions as to circumstantial evidence and how you may approach the issue of coincidence after you've heard from the prosecution as to the facts and matters upon which they rely and the defence response to it, you should consider the case against and for the defendant separately."
That's one way of putting it. So that is just flagging the issue up after circumstantial evidence.
Another way is:
"I shall return to the circumstantial evidence on which the prosecution rely and the defence response to it after counsels' speeches."
And then this is the part I think you would like, something like this, but maybe not this these terms.
I'm not sure whether Mr Johnson would or would not:
"The defendant was the only member of the nursing and clinical staff who was on duty at the time that the collapses of the babies occurred and had associations with them at material times, either being the designated nurse or working in the nursery. If you are satisfied in the case of any baby that they were deliberately harmed by the defendant then you are entitled to consider how likely it is that other babies in the case, who suffered unexpected collapses, did so as a result of some unexplained or natural cause rather than as a consequence of some deliberate harmful act by someone. You are also entitled to have regard to the fact that the defendant was the only member of staff on the unit on the occasion of each event.
"If you conclude that this is unlikely then you could, if you think it right, treat the evidence of that event and any others, if any, which you find were a consequence of a deliberate harmful act as supporting evidence in the cases of other babies and that the defendant was the person responsible.
"When deciding how far, if at all, the evidence in relation to any of the cases supports the case against the defendant on any other matters you should take into account how similar, in your opinion, the allegations and the circumstances of and surrounding their collapses are.
"The defence say that there are possible causes for many of the collapses other than an intentional harmful act, that the prosecution expert cannot be relied on in terms of providing explanations for many of the collapses, and there is insufficient evidence to lead you to the conclusion that these events were related and were a consequence of any harmful act by the defendant rather than a series of unrelated collapses that in some cases ended in death."
NJ: I can't think of a problem from our perspective.
JG: That then gives you free rein to make your submissions in relation to it.
BM: I'm grateful to hear it orally. I'd be grateful to see it in writing.
JG: You will definitely get it in writing, Mr Myers. It's just the spirit of it and you'll get the drift but it does flag up -- it's the coincident point of these similar facts and circumstances --
BM: Yes.
JG: -- without descending to any detail.
I have not referred to insulin, I have simply said "in relation to any event".
BM: It's something that has to be dealt with at some point, we recognise that. It's something that has to be dealt with at least to some extent before the jury hear speeches because they will need to know the issue is there.
JG: Absolutely.
BM: We'd be grateful to see the draft your Lordship has read. I can see, hearing your Lordship read it, why, to some extent, the court may be assisted, having heard arguments from either side, as to precisely how it could be framed. I can see that in fact in listening to that.
JG: Exactly.
BM: It's an organic process. Recognising that, we may wish to consider whether the first option is the preferable one. Whatever works best and fairest is what we seek and so long as the jury understand how it should be approached.
JG: I'll send you both versions --
BM: Thank you.
JG: -- for further comment. I don't think there's any point in spending more time discussing it now. It's important that you see and consider the proposals in writing.
BM: We'd be grateful, my Lord, thank you.
JG: That doesn't foreclose me and wouldn't foreclose me from coming back to this direction when I am reminding them of the evidence obviously because I'm going to have to rehearse both sides' arguments.
BM: It certainly would have the benefit, I'm not sure the prosecution are in the same position, that both parties would have a clearer idea or a clear idea of the way the jury will be directed on this and then submissions can take that properly into account.
Certainly the second version allows us to do that the better, but we would be grateful to look at the content of the detail.
JG: Because it's clear that when giving directions as to both circumstantial evidence and a similar fact or a coincidence direction, the jury have to be told what the evidence is and what the arguments are, they can't just be abstract. So anyway, I'll send both of these to you and you can consider them.
NJ: That was the very reason I descended into the detail I did in the --
JG: Exactly.
NJ: (Inaudible: no microphone) to the jury or not is a different point. Anyway.
JG: I'll get those to you, I hope by quarter to 11. I've got slight computer problems at the moment.
I will get them to you. Then you can consider them and indicate to me when you want to reconvene. Frankly, as I've indicated, as long as I am able to leave the building by 2.30, any time up to 2 o'clock is going to be fine because it's only going to take me maximum of half an hour to deliver these directions.
NJ: The point we made in writing, my Lord, is that because, as Mr Myers has just repeated in effect, this is an organic process because the summing-up hasn't finished, therefore the directions on which the jury will be making their decision haven't finished.
JG: Exactly.
NJ: As long as we know the general parameters before speeches and the fact that a direction is going to be given, I can certainly work around that. Even if Mr Myers can't, it still gives him most of next week to think about any submissions he wants and I don't believe actually that that would harm the prosecution in any way if he wanted to do that.
JG: All right. I'll send them to both of you.
You can each consider them separately and then, if you want to, collectively between the two of you and see whether there's any consensus or sufficient consensus to formulate an agreed document. All right? Thank you very much indeed.
So I can't say when the defendant will be required back in court, but you'll receive notice in the usual way. Thank you very much.
(10.27 am)
(Adjournment)
(12.00 pm)
JG: There's been a lot of toing and froing of versions. I hope that the latest one you have received, which will be very recent, because I have been having computer problems -- Mr Murphy's had to help me, we're sending away for new parts -- but is that agreed?
NJ: I think it is. There's one typo that remains, which --
JG: Can you tell me what it is, please?
NJ: I think it's in paragraph 4.
JG: What I'll do is I'll correct it and then print off this version, then it'll have to be photocopied anyway.
NJ: Paragraph 3, so page 2. Counting from the bottom of paragraph 3 --
JG: Sorry, hang on a second. Page 2.
NJ: Paragraph 3, seven lines up from the bottom of paragraph 3: "Witnesses falls", it says, but it should be "fall".
JG: Right, thank you. Page 3?
NJ: No, paragraph 3, page 2.
JG: "Witnesses fall into the same category", yes. Thank you.
I should have mentioned earlier this morning that I've identified the [Baby N] issue specifically and, I hope, addressed that.
NJ: Yes, we noticed, thank you.
JG: I hope it makes sense so that in that case they should treat it as contested and they decide where the truth lies if they deem it necessary.
NJ: Yes.
JG: Good.
BM: Thank you, my Lord.
JG: I'm very grateful to you. I'm sorry it's been a lot of toing and froing. What I will do, I will rise, because it'll take time to get the jury up. The usher will kindly go and get the jury. How long will it take to photocopy this for the jury and Mr Pilling? I promised him a copy. How many copies do you want, Mr Pilling? Should I be generous and say five? Right.
Five copies. So five plus 12. Do you want paper copies or not?
NJ: No, thank you.
BM: I'd be grateful if there's one going spare.
JG: There will be. It's not as though it's a voluminous copy.
BM: Just one for me, thank you.
JG: Do 20.
NJ: I'm sorry, in Mr Pilling's version, if it's going to be a hard copy, probably the names need to be redacted.
JG: Yes, they will be. They will have to be redacted. So I'm afraid you won't get it immediately.
We'll do 15 now, then we'll do some redacted ones for Mr Pilling as soon as possible. Unless you're prepared -- you just have one copy and I'll then give you the five copies in due course. If I give you one copy for while you're in court and then you hand it back when you leave court.
BM: May I have a copy for the defendant, Ms Letby, as well, please?
JG: Yes.
All right, thank you very much. This, as I say, shouldn't take more than 10 minutes. If the jury is brought up, I'm hoping we'll sit at about quarter past, so I'm afraid there will be about a 15-minute break now.
I'm sorry about the delay in my coming into court and the inconvenience that will have caused.
BM: We're grateful for the opportunity to deal with the directions as we have done, my Lord. Thank you.
JG: Thank you very much.
(12.03 pm)
(A short break)
(12.44 pm)
JG: Mr Johnson, Mr Myers, can I confirm with you that you are both content with this final version?
NJ: Yes.
BM: Yes, thank you.
JG: As you did say, Mr Johnson, it's not the final word. If matters have to be revisited they can be revisited in due course. There is a copy -- I don't know whether it's been photocopied yet, but there is a redacted version that I prepared just eliminating names. Has it been photocopied? Not yet. You can have it, Mr Pilling. I don't know how it can be done. Staff shortages are such that we can't summon someone to come and do it. You might have to wait until I have finished it. All right? Thank you.
(In the presence of the jury)
JG: I add to the litany of apologies for you being kept waiting. I'm very sorry. We had technological issues in relation to the photocopier.
There aren't many photocopiers that work in this building and eventually we got it, and I think the consequence is that the paper is not of very good quality.
But the document is now prepared and is available for distribution to you. What we're going to do is -- I shall speak to this, I will go through it with you.
As with all documents that you've been given during the course of this trial, this is your personal copy to keep, to write on, mark, highlight, do whatever you want with it. But it sets out, I hope clearly, for you my first set of directions of law and it will be a document to which, I have no doubt, you will be referring when you retire to consider your verdicts in this case because I set out routes to verdict in it -- or verdicts.
So this is, as I have indicated to you before, the first part of my summing-up. It's a short part. It will take no longer half an hour to deliver. That will then be as far as we will go today with this case.
You will have another early day because tomorrow we are not sitting and on Monday morning Mr Johnson will begin his address to you on behalf of the prosecution. So that's what's going to happen today.
This is quite dense, so I will go through it quite slowly and ensure that you are following and understanding what is written in this document. All right? So if you -- take it up and follow it as we go through it, please.
The Evidence
It is the first set of directions of law, Directions of Law 1.
Lucy Letby, to whom I shall refer as the defendant, is accused of 22 offences, being seven offences of murder and 15 offences of attempted murder, all relating to very young babies.
The prosecution case is that between June 2015 and July 2016, during the course of her work in the neonatal unit at the Countess of Chester Hospital in Chester, to which I shall refer as "the unit", as a neonatal nurse with special training, she deliberately harmed a total of 17 babies, intending to kill them; seven of the babies died.
She is alleged to have seriously harmed and killed the babies in various ways, including by injecting air into the venous system, by administering air and/or milk into the stomach via the nasogastric tube, by adding insulin as a poison to the intravenous feeds, by interfering with breathing tubes, and latterly by using force to the abdomen.
Some of the babies, they allege, were subjected to repeated attempts to kill them. You have to consider the cases of each of the 17 babies and return verdicts on each charge on the indictment to which they relate and, subject to what I say in relation to circumstantial evidence, you should consider the evidence in relation to each charge separately.
The law is my responsibility and you will receive all my directions of law in writing. This is the first set of directions. You must accept and apply my directions of law in reaching your verdicts. You and you alone are the judges of the facts and the conclusions to be drawn from the facts. You decide the case on and only on all the evidence placed before you.
There will be no more and you must not speculate about what other evidence there might have been.
You reach your verdicts on each of the counts by applying my directions of law to the facts established by the evidence and the conclusions you draw from them and, subject to the direction below relating to circumstantial evidence and the unlikelihood of coincidence, you should consider the case against and for the defendant on each count separately.
As I said at the very beginning of the trial, you must not approach the case with any preconceived views and you must cast out of your decision-making process any response or approach to the case based on emotion or any feelings of sympathy or antipathy you may have.
It is instinctive for anyone to react with horror to any allegation of deliberately harming, let alone killing, a child, even more so a vulnerable premature baby.
You will naturally feel sympathy for all the parents in this case, particularly those who have lost a child and the harrowing circumstances of their deaths.
You must, however, judge the case on all the evidence in the case in a fair, calm, objective and analytical way, applying your knowledge of human behaviour, how people act and react, using your common sense and collective good judgement in your assessment of the evidence and the conclusions to be drawn from it.
The evidence has taken a number of forms. There is direct evidence from witnesses called before you or read to you. There is also a large amount of documentary evidence and digital material, as well as agreed facts, which you have in writing. Facts that are agreed means that you do not have to decide the reliability of any of those facts. The evidence of witnesses that was read to you as agreed meant that the defence did not want to challenge anything the witness said.
In the case of [Baby N], the evidence of his father, [Father of Baby N], and the linked evidence of his mother, [Mother of Baby N], was read to you as agreed when in fact it should not have been read as agreed as it was disputed by the defendant. In that instance and in that instance alone in relation to evidence that was read as agreed, the witnesses fall into the same category as the disputed evidence of a witness who gave oral evidence.
Where there are disputes in the evidence and you consider it important or necessary to resolve a conflict in the evidence between a witness and the defendant, you decide who you find truthful and reliable in relation to the matter in issue and who you do not.
In the case of any witness you may accept all of what they say as truthful and reliable, you may accept some of what a witness says as truthful and reliable but not all, or you may reject all of what a witness says.
It is entirely a matter for you.
What you do not have to do is resolve every conflict in the evidence and be sure about every point that has been raised or try to determine exactly what happened.
It would, you may think, be a remarkable and exceptional case in which a jury could say, "We know everything about what happened in any case and why". You are not detectives.
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, was causative of death, as set out in the section below "Directions of law relating to the offences".
So that's highlighting something that's coming up later in the directions.
Nor do you have to be sure of the motive or motives for deliberately harming any baby. Motives for criminal behaviour are sometimes complex and not always clear.
You only have to make decisions on those matters that will enable you to say whether the defendant is guilty or not of the particular charge you are considering.
Any decision you do make must be based on evidence and not speculation.
What counsel say to you is not evidence. They are advocates, not witnesses. Their role is to present their respective cases, to question witnesses and to advance arguments on the evidence for you to consider.
So where a witness agrees with a proposition in a question then it is the reply of the witness that becomes the witness's evidence. Where a witness does not accept the factual proposition in the question then the question itself is not evidence.
Counsel are quite entitled to and do, of course, invite you to reach certain conclusions on the evidence.
They cannot give evidence of what did or did not happen, they can only make submissions on the evidence and invite you to conclusions on it.
As the judges of the facts, you and you alone decide the significance of any evidence that is agreed or you find to be truthful and reliable and the weight to be attached to it and its importance in deciding your verdicts and the conclusions you draw from all the evidence.
In addition to directing you as to the law that you must apply, I also have the responsibility of summarising the evidence in the case. There is a great deal of it. I shall try to assist you by reminding you of the background to and context of the events, identifying the essential issues, and then reminding you in some, but not exhaustive detail, of the evidence in relation to each of the 22 counts in the order in which they occurred.
I shall not refer to everything, that would be unhelpful and immensely time-consuming, but I shall make reference to the main documents. You are free to note anything about which I remind you or any reference I make. However, remember that it is for you to decide what is relevant and the important evidence and what is not and the conclusions to be drawn from it, so if I fail to mention something that you consider important, take that evidence into account. Conversely, if I refer to or appear to emphasise something you consider unimportant, attach no significance to the fact that I have referred to it.
You'll hear submissions on behalf of both the prosecution and the defence. I shall refer to their arguments, but I will not rehearse every argument or all the detail of them.
Circumstantial evidence and the unlikelihood of coincidence. This is a case in which the prosecution substantially, but not wholly, rely on what is sometimes referred to as circumstantial evidence. That is pieces of evidence relating to different facts, none of which on their own directly prove that the defendant is guilty but which, taken together, lead you, they say, to the inevitable and irresistible conclusion that the only explanation for them is that the defendant is guilty of the offences upon which she is charged.
Circumstantial evidence gains its force from a consideration of all the circumstances. You do not examine each piece of evidence separately and find that, considered on its own, that is not enough and move on to the next piece of evidence, which again, on its own, is not sufficient.
You must first consider in relation to those facts and matters which are not admitted which of them have been proved so that you are sure of them, taking into account the competing arguments in relation to the proper interpretation of those facts. You then decide whether the combination and cumulative effect of all the admitted and proved facts and circumstances lead you to the inescapable conclusion that the defendant committed the offence or offences you are considering.
You must be alert to distinguish between mere speculation and properly reasoned conclusions and inferences based on evidence. Speculation amounts to no more than guessing or devising theories of your own, which are not based on the evidence, which plainly is something you must not do.
I shall return to the circumstantial evidence on which the prosecution rely and the defence response to it after counsels' speeches.
The defendant was the only member of the nursing and clinical staff who was on duty each time that the collapses of all the babies occurred and had associations with them at material times, either being the designated nurse or working in the unit. If you are satisfied so that you are sure in the case of any baby that they were deliberately harmed by the defendant then you are entitled to consider how likely it is that other babies in the case who suffered unexpected collapses did so as a result of some unexplained or natural cause rather than as a consequence of some deliberate harmful act by someone.
If you conclude that this is unlikely then you could, if you think it right, treat the evidence of that event and any others which you find were a consequence of a deliberate harmful act as supporting evidence in the cases of other babies and that the defendant was the person responsible.
When deciding how far, if at all, the evidence in relation to any of the cases supports the case against the defendant on any other or others, you should take into account how similar or dissimilar, in your opinion, the allegations and the circumstances of and surrounding their collapses are.
The defence say that there are possible causes for many of the collapses other than an intentional harmful act, that the prosecution expert evidence cannot be relied on in terms of providing explanations for many of the collapses and that there is insufficient evidence to lead you to the conclusion that these events were related and were a consequence of any harmful act by the defendant rather than a series of unrelated collapses that in some cases ended in death.
The Alleged Offences
So I move on now to the directions of law relating to the offences. There are, as you know, two types of alleged offence: murder and attempted murder.
It is for the prosecution to prove the defendant's guilt of any offence by making you sure of her guilt.
She has no burden of proving her innocence. If you are not sure she is guilty of any offence your verdict should be not guilty. If you are sure of her guilt, your verdict should be guilty.
Murder, which is charged in counts 1, 3, 4, 5, 12, 20 and 21. The defendant is guilty of murder if by an unlawful act or acts she caused the death of a child with the intention of killing or causing some really serious harm to that child.
I address each of those three elements that are numbered there. Unlawful act or acts. An unlawful act in the circumstances of this case is one that was a deliberate harmful act that was intentionally clinically inappropriate. The defence case is that the defendant did nothing to harm any of the children.
Causing the death. Such act or acts and their consequences do not have to be the sole cause of the child's death but must be a substantial cause of their death in the sense that it was more than a minimal cause. So on the question of causation you must be sure that the defendant deliberately did something to the child that was more than a minimal cause of the child's death. The children were all premature and vulnerable.
Some had mild respiratory distress syndrome of prematurity and some had specific health issues. There were also a few cases of delays in the administration of appropriate medication or other clinical failings. Some of the causes of death were unascertained.
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. Her case is that the sudden collapses and deaths were or may have been from natural causes or for some unascertained reason or from some failure to provide appropriate care and were not attributable to any deliberate harmful act by her.
If you are sure that she did cause a child's death by some deliberate harmful act, you must then consider what her intent was at the time of the act or acts. In law, an intention to kill does not have to be proved; an intention to cause some really serious harm will suffice. However, the prosecution case is that the intention in the case of each of the 17 children in this case was to kill. In some cases she was successful, in others she was not. And those, of course, are the charges of attempted murder. The defendant's case is that she did nothing harmful and never intended to cause any harm to any of them.
Intention. You decide a person's intention by considering the nature of the act or acts that caused the collapse and death of the child in question, all the circumstances of and surrounding acts, including the child's relative vulnerability to harm and the actual or potential consequences of any act or acts, both in relation to the child in question and in the context of the sequence of such events as they occurred and anything the defendant said or did, both before, during and after the events.
If you are sure the defendant deliberately did something or things that caused the death of the child whose case you are considering, intending to kill or at least to cause some really serious harm to that child, then she is guilty of the murder of that child. If you are not sure of both those elements then she is not guilty.
So on each count of murder you should ask yourselves the following question: (1), are we sure that the defendant did some harmful act or acts to the child who died? If yes, you go to question 2. If no, your verdict should be not guilty.
(2), are we sure that the act or acts of the defendant was a substantial cause of the death of that child in that it was more than a minimal cause? If yes, go to question 3. If no, your verdict on that count should be not guilty.
(3), are we sure that when she did the act or acts that caused the death of the child she intended to kill or cause some really serious harm to that child? If your answer is yes, your verdict on that count should be guilty. If your answer is no, your verdict on that count should be not guilty.
I hope that's relatively simple in terms of the approach that you must take in relation to each of these counts and the sequential questions you must answer and you understand you've got to go through them in sequence because one leads on potentially to the other.
Attempted murder, which is the remaining counts on the indictment, which I have numbered there for you.
The defendant is guilty of attempted murder if, with the intention of unlawfully killing a child, she did an act or acts which was or were more than merely preparatory to killing that child.
Unlike the offence of murder, an intention to cause really serious harm is not sufficient; the proved intention must be to kill. The clue lies in the description of the offence: attempted murder, attempted killing. So the intention must be to kill.
The prosecution allege that in each of the cases of the babies who collapsed or suffered events but survived, the defendant deliberately did an act or acts to harm them, which was more than merely preparatory to killing the child and which in fact harmed them and, although they did not die, it was her intention that the child should die. The defendant's case is that she had no intention to harm, let alone kill, a child and she did nothing to harm any child.
So on each count of attempted murder ask yourselves the following questions: (1), are we sure that the defendant intended to kill the child? If your answer is yes, you go to question 2. If your answer is no, your verdict should be not guilty.
(2), are we sure that the defendant did an act or acts that was or were more than merely preparatory to killing the child? If your answer is yes, your verdict should be guilty. If your answer is no, your verdict should be not guilty.
The Verdicts
Then finally, verdicts. As you may know, the law permits me in certain circumstances to accept a verdict that is not the verdict of you all. Those circumstances have not as yet arisen. So when you do come to retire, which will obviously be some time yet, but when you do retire I must ask you to reach verdicts on each of the counts on which each one of you is agreed, guilty or not guilty. In other words, unanimous verdicts.
Should the time come when it is possible for me to accept a majority verdict I shall call you back into court and give you a further direction. You have that in writing. It's a very early stage. It's usually said at the very end of a summing-up, but I thought it was important to put it in writing immediately following the questions you must ask yourselves in relation to each of the counts. And of course, you must each answer in the same way before you reach a unanimous verdict. All right? As I said, there's a lot of material in there, but I hope it makes sense to you and as I have said, and will say yet again, you must follow the directions of law that are set out there and indeed the further directions I'll give you when I resume my summing-up in due course. They'll be in writing as a separate document, "Directions of Law 2" they'll be. All right? Not very many of them and they're not very long, so don't worry.
So that's it for today. Please remember your responsibilities as jurors: it is vitally important you do not speak to anyone or communicate with anyone in any way about anything to do with this case or conduct any research about anyone or anything to do with this case.
Keep your thoughts to yourselves. When you're all together you may talk. I'm not encouraging you to talk about the case, you are not forbidden from talking about the case, you will have time to do that when you're all together, having heard the arguments and the remainder of my summing-up and my resumé of the evidence.
Thank you very much indeed. 10.30 on Monday morning.
(In the absence of the jury)
JG: The answer is no. Thank you very much.
Mr Pilling, the photocopying will now be done so you can have a paper redacted version if you would like one.
The only thing is, the three names have been removed.
MR PILLING: Which are covered anyway.
JG: They're covered anyway, but it's an abundance of caution, just in case a copy of this document goes astray. I'm not suggesting they would in your hands, but...
Right. I'm just enquiring as to whether it'll be cooler next week because it's pretty borderline now.
NJ: Yes.
JG: Right.
(1.17 pm)
(The court adjourned until 10.30 am on Monday, 19 June 2023)