Evening all. I have been lurking here for sometime, reading with interest the numerous well-reasoned and balanced submissions, and have finally decided to create an account so that I can participate in the discussions .
This trial is unusual in many respects, but one of the key features is that for each charge, the jury is going to have to first decide whether the medical evidence put forward demonstrates that a murder or attempted murder has taken place; only if the answer is “yes” do you then move onto the question of whether the evidence shows that LL is guilty of that charge. This is unusual in that most murder/attempted murder trials start from a position of the defence and the prosecution agreeing that a murder or attempted murder has taken place, but the question for the trial is whether the accused is the one that has done it.
I think it is important to keep the questions separate when considering each charge so that we don’t end up conflating the question of whether there has been a crime in the first place with whether or not LL is guilty of the crime .
I have real concerns with the accuracy/reliability of the expert medical evidence submitted by the prosecution in this case, which all stems from the circumstances of one of the babies (I think it is Baby K, so I will refer to Baby K in this post). To be clear, I am not referring to the two insulin poisoning cases: they seem fairly straightforward in that they can’t have been accidental poisonings (on the basis that no one has suggested a credible explanation for how they could have accidentally been poisoned, eg the baby in the adjacent cot was on insulin, so maybe an over tired , over worked nurse administered insulin to the wrong baby).
For baby K, the prosecution originally charged LL with murder and attempted murder when she was charged in November 2020 following an investigation which had been going on for several years. Then, in June 2022, during a pre-trial hearing, the prosecution stated that it was offering “no evidence” in relation to the murder charge. LL is now on trial for the AM of Baby K, but not the murder .
I find this quite astonishing . Note that LL is still accused of AM for Baby K, so the prosecution still believe LL did something unlawful to Baby K. The issue is that from a medical causation point of view, the prosecution is no longer of the opinion that whatever LL allegedly did to Baby K actually caused Baby K’s ultimate death.
As has correctly been pointed out on here many times, the prosecution has a high bar before they bring criminal charges for murder or AM. They don’t just file charges willy-nilly. Before filing the charges in November 2020, the prosecution will have obtained expert medical evidence on the cases, and in particular, on whether the medical evidence shows that the alleged unlawful acts of LL caused the deaths of the babies. We can assume therefore that the expert medical evidence they received prior to November 2020 was that the medical evidence did support a murder charge; or, even if the medical evidence was not without doubt in relation to the question of whether the alleged unlawful act caused the death, there was a strong argument that it was the cause.
Something then happened in June 2022 to make the prosecution abandon the murder charge. The only explanation I can see given that the AM charge is still running is that the medical experts discovered some other medical evidence which completely destroyed their earlier opinions regarding the medical cause of Baby K’s death.
To have medical experts who have arrived at a conclusion that on the scientific facts, a murder has taken place, and then to have them change their minds less than two years later to say that on the scientific facts, a murder has not taken place, would make me (as a juror) very concerned regarding the reliability of the expert medical evidence in relation to the other charges.
To answer a question that will no doubt be raised , the reason why I have concluded that the medical evidence has changed is because of the way in which the murder charge for Baby K was abandoned. The prosecution can “discontinue” proceedings in relation to a charge at any point before the trial starts. If you “discontinue” the charge, then as the name suggests, the trial does not proceed, but the prosecution is free to re-file charges at a later date if it wishes. But that is not what the prosecution did with Baby K. Instead, the prosecution offered “no evidence” for the murder charge. When you offer “no evidence”, that results in an acquittal and the judge recorded a not guilty verdict against LL in relation to the murder charge of Baby K. That therefore means that the prosecution cannot ever re-file a murder charge for Baby K against LL due to double jeopardy laws (unless it can persuade a court that one of the limited exceptions to the double jeopardy law applies).
To my mind, if the expert medical evidence had just been diluted a bit , in that the experts were previously saying that they were 90% confident that the medical evidence proved the murder had been committed but on reflection, they were now only 60% (or less) sure, then in my opinion, the prosecution would have chosen to “discontinue” the murder charge rather than offer “no evidence”. If there was still a chance that a murder could be proved at some time on the medical evidence, the prosecution would have wanted to preserve its position to ensure that it could re-file charges one day in the event that medical or scientific advances meant that the charge can be proven. And they would therefore preserve their ability to get justice or Baby K in relation to the murder charge. The fact that they didn’t do this and instead offered “no evidence”, which results in a not guilty verdict, to me, says that the revised medical evidence left no doubt regarding whether a murder had taken place: the revised evidence was clear that it had not.
JMO etc
Welcome, and thank you for the interesting post.
I agree, the starting point must be whether or not each child was attacked, as opposed to collapsing/dying from natural causes.
I have noticed that in the case of baby I, the prosecution is alleging that LL attempted to murder her four times before succeeding in murdering her, yet she is only charged with one count of murder. I have not been able to establish from reading the government guidelines why that might be, considering that the alleged attempted murders were very clearly separated from the alleged murder by many days. Attempted murder (with the requisite intention to kill needed to prove the charge) would of course be treated as seriously as murder by a sentencing judge, because intention,
mens rea, would not be diluted by the fact the victim’s life was saved multiple times by medical intervention. This leads to consideration of what a sentencing judge might consider an appropriate sentence, if the accused was guilty of attempting to murder a child four times before succeeding, and I think the outcome would always be one life sentence of a determinate period for the murder, not five separate sentences for attempting to do what was ultimately achieved.
I believe, based on baby I’s case, that the Crown had this in mind when they made their charging decision, even though I can see a case for arguing (in general, not relative to LL’s case) that a jury could decide that they are sure an accused individual carried out the attempted murders but they aren’t sure enough to convict on the actual murder charge. If the accused was found not guilty of murder in that case it would fall to the charging decision, a technicality, and the accused would walk free if not also charged with the attempted murders.
It's interesting to compare baby I with babies G, H, and N, who all survived, but where LL
is charged with multiple counts of attempted murder. I can see a case for arguing that one attempt is not more serious than another, and to help secure a conviction each alleged attempt is charged, even though if found guilty the sentence is unlikely to be multiplied by the number of attempts. IMO
I think baby K is more complicated, and is unique, in the sense that LL was originally charged with attempted murder and murder. I don’t know if these were originally framed as
alternative charges, always with the intention of being decided by legal advisers before trial, because I can’t see an argument for charging both, if we follow the examples in babies I, G, H and N. There are further cases where the prosecution says LL attempted to murder babies multiple times on the same shift, (A and E come to mind but there are probably others) and these also are only charged once, as murder.
Looking at the case of baby K, she was born at 25 weeks, weighing 1lb 8oz. Arrangements were in the process of being made to transfer her to a tertiary unit within an hour or so of her birth. According to the prosecution, she was sedated and her breathing tubes were secured to her headgear. It is alleged that LL interfered with her breathing tubes, paused the monitor alarm, and didn’t assist (the latter being an act of omission). Dr Jayaram noticed her sats were in the 80s and falling, which means the alarm, on the monitor which was on, would have sounded. The team turned up to transport her, and she died three days later. LL told police that she was 'possibly waiting to see if baby K self-corrected, and they don’t normally intervene straight away if the sats weren’t dangerously low'. A nursing expert consulted by the prosecution said that it was unlikely the designated nurse would have left baby K for more than a brief moment unless they were confident that the breathing tube was secure and that baby was inactive, and dismissed the idea that a competent nurse would delay intervention if the baby desaturated. Dr Evans said LL’s failure to summon help was unusual.
Over two years later, in 2018, three months before her arrest, LL looked up baby K’s parents on Facebook. So we know this was a baby who - had been at the CoCH for a total of 6 hours, wasn’t LL’s designated baby, had left the hospital alive, and LL had not been confronted over pausing the alarm or moving the breathing tubes - yet LL had a reason to recall this baby years later and look up her parents. The prosecution may have been of the view that this Facebook search was a heavy indicator of consciousness of guilt, considering the baby didn’t die for three days after leaving the Countess and the other circumstances.
Interestingly to prove a murder charge based on an earlier act, the prosecution must demonstrate chain of causation.
Causation
The prosecution must show a causal link between the act/omission and the death. The act or omission must be a substantial cause of death, but it need not be the sole or main cause of death. It must have
"more than minimally negligibly or trivially contributed to the death" - Lord Woolf MR in
R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.
It does not matter that the act/omission by the defendant merely "hastened" the victim's death:
R v Dyson (1909) 1 Cr App R 13.
However, where it is alleged that an omission was a substantial cause of death, causation is particularly difficult. It is necessary to prove to the criminal standard that, but for the omission, the deceased would not have died.
To break the "chain of causation" an intervening act must be such that it becomes the sole cause of the victim's death so as to relieve the defendant of liability - see
R v Wallace (Berlinah) [2018] EWCA Crim 690;
R v Kennedy (Simon) [2008] Crim. L.R. 222. Examples of intervening acts are:
- Third party interventions: Such an act will not break the chain unless it was a free, deliberate, informed, voluntary act, which was not reasonably foreseeable by a reasonable person: R v Pagett (1983) 76 Cr App R 279.
- Acts of God or nature, if entirely unforeseen and unconnected with the defendant's act.
- An act of the victim if not within the range of response which might be anticipated from a victim in his situation: R v Roberts (1972) 56 Cr App R 95 and R v Williams and Davis (1992) 95 Cr. App. R. 1. Note: Reeves v Metropolitan Police Commissioner [1999] UKHL 35 where it was accepted that if the police were aware that the prisoner was a known suicide risk then a special duty of care existed.
- Death resulting from any normal medical treatment employed to deal with a criminal injury must be regarded as caused by the criminal injury. It is only in the most extraordinary case that treatment designed to repair the harm done by the original attack could be regarded as the cause of the victim's death to the exclusion of the accused's act: R v Cheshire (1991) 3 All ER 670.
The defendant must take his victim as he finds him under the 'egg-shell skull' rule:
R v LeBrun (1991) 4 All ER 673. As a result, any pre-dispositions or inherent weaknesses or vulnerabilities of the victim are deemed irrelevant.
Homicide: Murder and Manslaughter | The Crown Prosecution Service
I think the case of baby K may have been complicated by this chain of causation, having to prove that she didn’t ever recover from the initial alleged acts/omissions, during her three days of life at another hospital, and/or that she was ever in a condition that they could prove she would have lived but for the alleged acts/omissions, or that she died because of them.
Certainly I don’t think we have enough information to say that the medical experts advising the prosecution changed their opinions at any stage. It appears that what happened that morning at the Countess was largely a matter of opinion from a nursing expert. For all we know, the prosecution’s case may have always been heavily weighted by the Facebook search.
As regards alternative counts, the CPS website only goes into manslaughter as an alternative charge to murder, there is no reference to attempted murder being an alternative count, so I think on balance it was a charging decision that had to be made before trial - based upon the likelihood of securing a conviction, the acknowledged difficulties with proving causation, and bearing in mind that both charges are equally serious.
JMO
edited to say that I see there's a post above also referring to causation, so I hope I'm not repeating the same points that have already been made while I was writing my post!
