Voices: The Lucy Letby case has exposed a justice system that is failing victims

If we want criminals like Lucy Letby to pay, let’s live-stream all trials (Cheshire Police)
If we want criminals like Lucy Letby to pay, let’s live-stream all trials (Cheshire Police)

Trust is the battle of our age. Institutions need it to fulfil their duties, but they seem to expect it rather than earn it. It’s no coincidence that the NHS is run by local “trusts” – but that’s just a word without them relentlessly upholding it.

With that in mind, the revelations about the Countess of Chester Hospital Trust in relation to the serial child killer Lucy Letby and those who managed her will have a devastating impact on the ability of the local population to trust them.

The key issue is a lack of accountability. They appear to many to be above the law – nobody gets held responsible for failures. In fact, they often get promoted. There appears to be no regulation that applies to senior managers, the same way it does doctors and nursing staff.

For an idea of why this is happening, let’s look at the law. The offence of corporate manslaughter applies to all businesses, corporations, public bodies, police forces, partnerships or trade unions operating in the UK. To be prosecuted for it, you need to be able to prove that the organisation had a duty of care to the deceased; that there was a gross breach of that duty; that management played a significant role in the breach; that the gross breach of duty of care caused or contributed to the death.

However, under section 18 of the Corporate Manslaughter and Corporate Homicide Act 2007, individuals cannot be prosecuted for the offence of corporate manslaughter – but only for their personal failings in cases of gross negligence manslaughter. That is a very high threshold to cross.

Individuals in senior roles can be prosecuted for misconduct in public office where they wilfully neglected to perform his or her duty, but conduct must be deliberate, not accidental. It also has to be to such a degree as to amount to an abuse of the public’s trust in the office holder – this is a high legal test to meet.

It’s therefore unlikely that corporate manslaughter applies in the Letby case – or would deliver the outcomes people want. There is a much stronger case for investigations and possible prosecutions for misconduct in public office.

Then there is Letby’s own liability: we already know she will never be released (though, in fact, the home secretary could order her release on compassionate grounds, for example if she was terminally ill). There was understandable outcry following her decision to stay out of court and not hear the deeply painful victim impact statements. In the eyes of many, she avoided true accountability. Calls are coming from the victims’ families, including those of other murdered persons – like Zara Aleena and Olivia Pratt-Korbel – for law change. Both the government and opposition have said they will deliver. But deliver what?

Threatening an increased sentence if a criminal doesn’t come into court provides little incentive for them to comply, if they are already anticipating 30 years or more in prison. Nor will a reduction in prison privileges have much impact for those who will be held in category A (the most secure) prisons, which is where all serious crime offenders end up.

Live-streaming the hearing to the jail cell doesn’t get around the fact that they can simply close their eyes and ears. The call for convicted murderers to be restrained and gagged and forced to come into court – “hannibalisation”, named after the fictional serial killer – has much public support, but seems alien to our society. Is it any wonder that the law-abiding public question whether the justice system works in their interests?

This is, however, symptomatic of a greater malaise, as I can attest. I was a chief prosecutor for decades – I always objected to us calling it a justice “system” when it should be a justice “service”. It’s not just semantics – it reflects a culture which is process driven and not public centred.

There’s also an issue with delay – such as in cases where a suspect, a victim or a witness will have to wait more than two years for their case to be resolved. They receive minimal information or updates on the process and may suffer increasing trauma as time passes. I can’t begin to recall the number of times witnesses have told me that they will never again support a prosecution. This is most painful where the suspect, victim or witness is vulnerable.

I’m also tired of the number of times I have heard the phrase “victim-centric” or “victim-focused justice” bandied around – when it’s simply not true. We still order witnesses to give evidence with only one night’s warning; we still start trials closer to noon than 9am; we still refuse to have trials after 4pm or at weekends, when people might find it easier to attend; we are still waiting for technology to improve victims’ experience.

The very best lawyers and judges share my frustration, but – like me – feel unable to change things.

There are massive funding pressures, there are issues of experience and training, and I am sure many other excuses. But that’s what they are – excuses.

I have seen cases prosecuted that really should not have seen the light of day given the paucity of evidence, but nobody seems able to say no. The “system” takes over.

I worry about the stresses my former colleagues are experiencing, how they have to time-manage all their charging decisions – a very tight 45 minutes or less – and then pick up the pieces afterwards. I have witnessed defence lawyers in tears because they have insufficient funds to support themselves and so have to cut corners.

Trust requires the highest levels of accountability and transparency. The time has come for the royal commission on criminal justice offered in the Tory 2019 manifesto to be fulfilled.

The time has come for live-streaming of all criminal trials (with protection for vulnerable witnesses) and a justice system that is properly funded to deliver justice for all.

Nazir Afzal OBE, is a solicitor and former prosecutor within the crown prosecution service