Lucy Letby
When Andrew Malkinson was cleared of rape last year after the Criminal Cases Review Commission (CCRC) had wasted at least ten years of his liberty by rejecting his applications, a review into the appalling failures of the CCRC was conducted by Chris Henley KC. Henley completed his enquiries recently and in response the CCRC has given a commitment to improve their performance in a number of areas. If these commitments are implemented, among those who should benefit is Lucy Letby[1].
There is now very considerable comment in the mainstream media about the notion that Lucy Letby was denied a fair trial; rather ironic given how speedily the tabloids were to condemn her before her case had even been to court.
Commentators who are convinced of her innocence are pressing for ‘justice’ to be done after the Court of Appeal (CoA) turned down her application recently. However, with a sense of dread many now realise that her only hope is the Criminal Cases Review Commission (CCRC) and Letby supporters are beginning to become aware of the strictures of Section 13 of the Criminal Appeal Act (see here and below).
The stark truth is that only 2.4% of applications to the CCRC result in an exoneration; the overwhelming majority of applications are rejected. Additionally, despite what the CCRC claims about processing submissions in a timely manner, cases with any degree of complexity take years to ‘progress’ through the glacial CCRC system. The CCRC quite regularly takes between 5-10 years to process such cases and the outcome is invariably a refusal to refer to the CoA.
The Letby case and her ten-month trial which was shrouded in secrecy has been exposed in numerous articles recently published on the internet and in print as having been an expensive fiasco of flawed and biased prosecution evidence. It is no longer a question as to whether the prosecution case was based on faulty logic as it is self-evident (see). It is becoming clearer by the day that Letby is a scapegoat for a chaotic NHS hospital that was out of its depth in dealing with premature and gravely ill babies, lacking the necessary facilities and expertise to treat dreadfully ill infants.
Can the CCRC with their very limited (non-existent?) expertise in medical and statistical matters possibly find their way through the complex scientific arguments that are now being expounded to explain why many opine that Lucy Letby is not guilty? Society is now asking work-from-home desktop legal reviewers led by part-time Commissioners to investigate with meticulous care a mass of highly technical scientific comment on the case. Following the Henley review the CCRC have committed to employing a forensic science and expert evidence adviser “to ensure that we remain up to date with ongoing developments and to support us in sourcing the most appropriate experts to provide opinions in individual cases”.[2] This should assist in examining the statistical evidence used against Lucy Letby, which has been misrepresented by the Crown Prosecution Service (CPS) and given undue prominence by the Court and the Court of Appeal.
On 17th July, the Royal Statistical Society (RSS) said:
"We are pleased that the Thirlwall Inquiry[3] accepted our recommendation that the terms of reference include the appropriate use of statistical evidence in cases of medical murder. Statistical monitoring systems are well established to provide alerts to unusual patterns of events and, if implemented and interpreted properly, they facilitate early detection of anomalies and can inform subsequent investigations."
The 2022 RSS report points out that statistical aspects in ‘cluster’ cases are ‘often non-trivial, fraught with difficulties, challenging to lay people and to lawyers. They are not entirely straightforward to the specialists!’ The RSS’s major recommendation was that all parties involved in the investigation and prosecution of such cases need to consult with professional statistics and ‘use only appropriately qualified individuals as expert witnesses’.
There can be little doubt that the CCRC as staffed at present would not be able to comprehend fully the statistical evidence in the case, so the recruitment of specialist advice is to be welcomed.
If the recommendations in Henley’s report are implemented, CCRC staff will begin to view the notorious ‘real possibility test’ from a different perspective. Henley said in his recommendations: 'It should not be taken to mean can the defendant prove his or her innocence', as it was during the 2009 (Malkinson) application and, on the face of the written case record, during the 2021 application. This would relate similarly to the Lucy Letby case: She does not have to prove her innocence – indeed, it would be difficult for her to prove that she did not kill any babies.
The importance of understanding the test is that the new evidence needs to be reviewed carefully in the context of what the issues were at the time of the trial and what was said about them. This is a very different exercise to considering whether new evidence proves an applicant’s innocence. (In the case of Lucy Letby this applies particularly to the statistical evidence and the testimony of a number of medical staff, especially retired Doctor David Evans).
Although couched in defensive and not entirely supportive terms, in response to Henley the CCRC has nonetheless stated:
“We agree that it is important to ensure that staff and Commissioners continue to be trained in and regularly reminded of our statutory test. Section 13 of the Criminal Appeal Act 1995 requires the CCRC to determine whether there is a real possibility that the Court will not uphold a conviction. The test is not straightforward: it requires the CCRC to predict the Court’s view of the safety of the conviction and to have regard to the Court’s practice. In a fresh evidence case, that may include considering whether a jury might reasonably have reached a different verdict (or ‘might reasonably have acquitted’). Assessing the effect of fresh evidence – whether directly on the minds of the Court of Appeal judges or indirectly via the jury impact test – requires the CCRC to ‘evaluate its importance in the context of the remainder of the evidence in the case”[4].
There can be little doubt that the Henley Report potentially sets the CCRC on a collision course with the Court of Appeal. The CoA, as it always does, has emphasised in its deliberations how well the trial judge performed his/her duties. In the fullness of time this will, surely, be exposed as fallacious, but the CoA will be deeply reluctant to admit that the judge made any errors of judgement regarding the exactness of medical evidence. For example, from the CoA ruling:
“The judge ruled that there was a sufficient body of accepted expert medical opinion that administration of air into the venous system could cause air embolism which might be fatal"[5].
He acknowledged the rarity of the condition and that it followed that there was limited medical literature and research on the condition and that clinical experience was bound to be limited. He ruled, however, that it did not follow that the body of evidence taken as a whole was too vague or inherently weak to be admissible evidence. Such criticisms of the experts were, he found, matters for the jury to consider and evaluate along with the other evidence in the trial. The judge was, surely, in error to have said that there was any correctness in the testimony about ‘air embolism’; there is no evidence supporting the finding of air embolism in any of the infants, as the expert witnesses relied on a journal article depicting gas embolism and not air embolism.
Lucy Letby is in the same position as many others who have found after their case was tried that the prosecution evidence was factually ‘wrong’. The difference in her case is that public opinion is swaying in favour of her (how long this will last is questionable). Tabloid newspapers that were swift to condemn her even before her trial are now questioning the verdict. Slightly more responsible newspapers such as The Guardian and The Daily Telegraph have also published strong criticisms of the evidence presented at her trial.
Additionally, the internet is awash with articles pointing out the scientific ‘nonsense’ that was used to convict her. Indeed, perhaps the greatest factor in support of Letby is the internet, which was not as widely available to publish differing evidence in relation to many previously wrongly convicted persons. Scientific information undermining the defence is already in copious supply and it will only grow in the future.
The CCRC finds itself between a rock and a hard place. The dissenting public will not accept a ‘real possibility test’ refusal to refer, it would be viewed as a ‘cop-out’. Yet, legally, it is what the CCRC is required to do. The only practical solution, it seems, is for the Court of Appeal to recognise the gravity of the error in finding Letby guilty and quietly signalling to the CCRC that it will accept new scientific evidence. That would be common sense; but how often does the CCRC or the CoA apply common sense?
The CCRC was envisaged as a body to assist innocent victims to overturn their wrongful convictions that the existing criminal appeals system was unable to overturn; it was proposed that the CCRC would “undertake comprehensive investigations in criminal cases where miscarriages of justice may have occurred” and to “examine the totality of the case to seek to assess whether there is prima facie evidence of a miscarriage of justice”, with all references to miscarriages of justice to be read as meaning the possible wrongful conviction of an innocent individual. This intention is stymied by Section 13 of the Criminal Appeal Act.
Lucy Letby falls into the same grouping of prisoners as the exonerated Andrew Malkinson, who described himself as having been “kidnapped” by the State. It is rumoured that several Ministers in the new Government are concerned by the apparent misjustice of the Letby case. There may be scope for political pressure to be brought upon the CCRC/CoA. The Lucy Letby case could result in the scrapping or rewriting of the real possibility test – many will hope that is the case. Perhaps it only requires the erasure of one word from Section 13 – the word ‘real’?
A final thought: it would be refreshing if the CCRC didn’t wait for Lucy Letby to approach them before instigating an investigation into the circumstances of her imprisonment. There is nothing in the Criminal Appeal Act 1995 to suggest that the CCRC, being aware of public concern about the correctness of a guilty verdict, cannot take the initiative in investigating issues raised. What are the CCRC waiting for?
By Bill Robertson
Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.
Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.
References
[1] Much will depend upon whether leadership changes are forthcoming. If the Chairman and Chief Executive remain in post the effects of the review may be disappointing.
[2] Henley Report page 117. Malkinson Integrated-Report-Response-Redacted-Copy.pdf
[3] The Thirlwall Inquiry | Examining the events at the Countess of Chester Hospital and their implications following the trial, and subsequent convictions, of former neonatal nurse Lucy Letby of murder and attempted murder of babies at the hospital.
[4] Henley Report pages 117-118
[5] It appears that there is only one research paper, dating from 1989, which discusses gas embolisms, which occur through the use of high ventilation pressures in preterm neonates. The cause of death due to gas embolism from high pressure ventilation differs substantially from the cause of death due to air embolism. It is never properly explained how the article Dr Evans referenced could ever have been used as a basis for describing air embolism using ambient air with 21% oxygen introduced through various tubes.
Comments