Lucy Letby
Lucy Letby was tried and convicted by the tabloid press long before her trial took place and if you are convinced that she killed babies due to injecting them with insulin and causing ‘air embolism’ it is likely that you have accepted the prosecution evidence. However, the same press that created Lucy Letby as a ‘folk devil’ are now questioning whether her conviction was correct, primarily due to information now available about the medical evidence given in the case.
This article outlines how the prosecution evidence is scientifically flawed to the point of being useless and how there is no explanation as to how the babies died but, almost certainly, Lucy Letby did not kill them. We speculate below on what would happen if Lucy Letby made an application to the Criminal Cases Review Commission (CCRC) based upon their processing of similar cases.
Even if you are convinced that Lucy Letby is guilty, if you have an interest in justice being served you should be deeply concerned at the manner in which she was convicted and the way her attempts to appeal her conviction have been dismissed by the Court of Appeal (CoA).
Former nurse Lucy Letby now faces the rest of her life in prison. Given that she is 34 years of age, this might entail at least 45 years of incarceration. Oddly, she is now convicted of the murder of numerous children who are officially recorded as having died of natural causes and she insists that she is innocent. The Court of Appeal (CoA) refuses to admit and consider scientific evidence that potentially exonerates her. The current highly unsatisfactory situation is summarised thus:
“From the outset, this case proceeded by pure scientific speculation, and introduced employees of the same organisation that employs the defendant (The National Health Service) to testify to the validity of the forensic investigation performed by an expert who solicited the role as an investigator (Dr Evans). The indictment concerns the deaths of seven neonates (down from 8) and a further 15 charges of attempted murder. In only two cases is there evidence that might be deemed to have some scientific validity. Those are the charges relating to insulin poisoning. However, contrary to their intended purpose, if the expert witnesses were to apply the actual scientific rigour required of them, they would recognise that the two cases of insulin poisoning are so scientifically unlikely that it leads one to assume that the entire case is based on flawed scientific logic. Admittedly, we do not know what the legal standard is for changing cause of death, but Ms Letby should not be treated to such an unusual situation where a criminal trial is used to disprove the findings of the pathologist who performed the autopsy, and the coroner who confirmed the findings. Simply put, that is what has occurred in this matter. There is no refutation of the recorded cause of death. Instead, there is an immediate disregard for the autopsy findings, except for those which lend support to the claims put forth by the expert witnesses."[1]
For a highly detailed scientific critique of the medical evidence that is devastating for the Crown case, see the Science on Trial website.
On Friday 18th August 2023, at Manchester Crown Court, Lucy Letby was convicted of 14 crimes: 7 murders and 7 attempted murders.
Lucy served as an NHS nurse in the Neonatal Unit (NNU), at the Countess of Chester Hospital (CoCH), in Chester for several years, where she was described as a dedicated nurse with specialist training in ICU babies.
The cumulative infant mortality rate at the Countess of Chester Hospital for 2015 and 2016 was lower than the national average.
The number of perinatal deaths in 2017 and 2018 was higher than in 2015 and 2016, but Lucy Letby was not on the ward in these years; this has not prompted any investigation into the cause.
The jury was shown a chart listing 25 deaths and collapses Letby was charged with and the names of the nurses who had worked on the unit through the period of the cluster of deaths. The column for Letby was marked with a cross for every incident, whereas other nurses had only been on shift for some of them.
However, the jury was not told about six other deaths during the relevant period with which Letby was not charged. They were omitted from the table.
John O’Quigley, a professor of statistical science at University College London (UCL), said:
“People get the wrong end of the stick with statistics. In my opinion there was nothing out of the ordinary statistically in the spike in deaths, and all the shift chart shows is that when Letby was on duty, Letby was on duty."[2]
Since her most recent conviction, it is now emerging that there are very serious concerns about the accuracy of the scientific evidence used to convict her. There are parallels with other long-standing miscarriages of justice, particularly the case of Clive Freeman (see here) and Robin Garbutt (see here). In Freeman’s case nine highly experienced forensic scientists have disagreed with the inexperienced pathologist who gave evidence at trial; the nine say that no murder took place and the deceased died of natural causes. The Criminal Cases Review Commission (CCRC) have to date ignored the nine dissenting pathologists. In the Garbutt case crucial time of death evidence was given by an academic biologist with no criminal forensic science background and her same evidence on time of death had a totally different conclusion in another case. The CCRC has similarly refused to regard her testimony as sufficiently flawed to justify a referral to the Court of Appeal.
The evidence given by the main scientific witness in the convictuon of Lucy Letby, Dr David Evans, is now subject to ridicule[3]:
“The claims made by the experts in this case were reviewed and the references upon which they relied to make such claims were sourced, analysed and cross referenced with the body of literature on the related topics. Based upon these factors, it is quite apparent that the quality of the scientific evidence is deficient and scientifically unfounded. For example, Dr Evans’ primary assertion is that some of the infants were harmed by air embolism, where air was deliberately injected into a vein, or through the stomach. Peculiarly, Dr Evans relies on a research paper from 1989 dealing with 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 references could ever have been used as a basis for describing air embolism using ambient air with 21% oxygen introduced through various tubes. The paper Dr Evans references describes air embolism caused by high pressure 100% oxygen being delivered to the lung with such force it caused an air leak in the lung...There is no evidence supporting the finding of air embolism in any of the infants, as the expert witnesses rely on a journal article depicting gas embolism and not air embolism.”
The idea that injecting air into the stomach via a nasogastric tube could cause collapse leading to death was described as nonsensical or “rubbish”, “ridiculous”, “implausible” and “fantastical”, by eight separate expert clinicians who spoke to The Guardian newspaper, seven of them specialising in neonatology.
Therefore, what cannot be explained away by the prosecution is the comment and expert opinion circulating on the internet that says that Dr Evans was out of his depth and wrong in his evidence.
This is the crux of the problem when prosecution scientific witness testimony given by ‘inexpert’ witnesses is subsequently challenged. Many scientists now commenting on the case would have been unaware of what evidence was going to be given in Court and, thus, were not able to challenge it before the trial commenced.
What happened at the trial is summarised in the Court of Appeal judgement[4]:
The defence mounted a robust approach to the evidence that was called. Serious allegations were put to the numerous professional witnesses (including expert witnesses) who were called on behalf of the prosecution. Two points may be noted at the outset. First, though the defence instructed a number of expert witnesses of their own, and many reports were served from them before and during the trial, no expert evidence was called on the applicant's behalf. The entirety of the evidence called for the defence consisted of the applicant's own testimony, and that of an estate plumber, who had worked at the hospital since 1986. He gave evidence about certain plumbing problems that had occurred at various points in the unit; and of two particular incidents in the unit, but not on a date or around the time of any incident in the indictment. Secondly, to make a somewhat basic but related point, what was put to the prosecution witnesses in cross-examination was not evidence, save to the extent it was accepted by the witness. More specifically, in the context of this appeal, suggestions made in cross-examination which were not accepted by prosecution witnesses and were not supported by evidence called on behalf of the applicant, are, as the respondent has submitted, irrelevant.
As the judge explained it to the jury in his summing-up:
"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."
Thus, the defence did not call any witnesses to rebut the prosecution scientific evidence; a very serious omission and potentially fatal for Lucy Letby’s chances of a successful application to the CCRC.
Similarly significant was the following point regarding a ‘no case to answer’ submission:
"37. At the close of the prosecution case a submission of no case to answer was made on the applicant's behalf on the grounds that:
i) none of the experts who had given evidence on the topic of air embolus had a sufficient clinical experience and expertise to do so.
ii) the research basis for air embolus as cited in the evidence was too vague and inconsistent and failed to match the requirements of scientific evidence capable of supporting the diagnosis.
iii) the prosecution experts were inconsistent in their descriptions of the characteristics required to support the diagnosis of air embolism.
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. 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. (emphasis added)
Therefore, the Court and the CoA have stymied any potential submissions to the CCRC by Lucy Letby. The CCRC has a track record of deference to the CoA and in relation to expert witnesses is loath to accept new evidence from what the CCRC describes as “bigger and better experts”. This is a ridiculous stance given the existence of the internet and websites such as Science on Trial. The CoA and CCRC cannot just wish that the public remains unaware of the flawed nature of the scientific evidence given at the trial but this is the stance that they take.
I am now going to refer to part of an article written by Dr. Michael Naughton, founder of Empowering the Innocent (ETI), for an explanation of how the 'real possibility' test prevents the CCRC from assisting innocent victims of wrongful convictions.
What is the CCRC, why was it established and what task was it envisaged to do?
To understand the detrimental effect of the statutory referral test on the CCRC's ability to assist innocent victims to overturn their wrongful conviction we must, firstly, go back to when it was created and consider why it was set up and what it was envisaged to do.
The CCRC is the World's first publicly funded post-appeal body with the task of investigating alleged miscarriages of justice in cases where there are continuing claims of wrongful conviction which have failed to be overturned within the normal criminal appeals system.
It was established as the main recommendation by the Royal Commission on Criminal Justice (RCCJ) that was prompted by the public crisis of confidence in the entire criminal justice system that was caused by the cases of the Guildford Four and the Birmingham Six and a string of other notable miscarriage of justice cases at the time. It is significant that the RCCJ was announced on the day that the Birmingham Six overturned their convictions in the Court of Appeal (criminal Division (CACD) on the 14th of March 1991.
In particular, it was found by the RCCJ that successive Home Secretaries under the previous system for dealing with alleged miscarriages of justice were failing to refer potential miscarriages of justice back to the CACD for political, as opposed to legal, reasons and that individuals believed to be innocent, were unable to overturn their convictions within the existing criminal appeals system.
Whilst the RCCJ felt that the CACD ought to be able to quash the convictions of the innocent, it recognised that it operates within a realm of legal rules and procedures that mean it is neither “the most suitable or the best qualified body to supervise investigations of this kind” (RCCJ Report, page 183).
This indicates, clearly, that the CCRC was envisaged by the RCCJ as a body that would assist innocent victims of wrongful convictions to overturn their convictions that the normal criminal appeals system could not do.
Further evidence that 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 is the Report by JUSTICE in 1994, Remedying Miscarriages of Justice, which was submitted to the RCCJ and is widely held to be the blueprint for the CCRC.
It proposed that the new body 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 (see Remedying Miscarriages of Justice, pages 21-22).
It is in the context of what kind of post-appeal body that the CCRC was intended to be and the role that it was envisaged to perform that the restrictive nature of the referral test under s.13 of the Criminal Appeal Act 1995 can fully understood. In full, s.13 states:
13 Conditions for making of references:
(1) A reference of a conviction, verdict, finding or sentence shall not be made...unless:
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider —
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused (my emphases).
What is commonly referred to in s13 (1)(a) as the 'real possibility' test undermines the CCRC's claim of independence, something that I and others (see here, here, here, here, and here) have been highlighting for many years, in its requirement that the CCRC can only refer cases back to the appeal courts if it is felt that the conviction has a ‘real possibility’ of not being upheld.
In the context of the Lucy Letby case, whatever major issues are highlighted about the scientific evidence, the CCRC has no power to refer her case to the CoA, as Dr Naughton says:
This renders the CCRC in a puisne position vis-à-vis the criminal appeals system. Overall, it lacks the authority necessary to make decisions for itself as to whether a miscarriage of justice may or may not have occurred as it is in the inferior position of having to try to second-guess what the appeal courts might decide on any convictions that it might refer.
To be sure, if the CCRC were genuinely independent, it would be separate from the criminal justice system, not have to work under its terms, and would be able to rectify miscarriages of justice, whether the evidence of the miscarriage of justice was considered ‘fresh’ or not in the narrow criminal appeals system’s legalistic meaning of that term.
This statutory requirement impacts on how the CCRC review applications as it forces Case Review Managers (CRMs) to look at the criteria of the appeal courts to determine whether the case may qualify for referral[5].
The CCRC, if receiving a submission from Lucy Letby, would likely defer to the CoA and as the CoA has already said that they are not prepared to hear from experts disputing the evidence given in Court, the CCRC are obliged by the “real possibility test” to reject any potential submission from Lucy Letby. She is obliged to find new evidence and, additionally, it has to be evidence that was not available to her at the time of her trial. The reality is that Lucy Letby requires a virtually unprecedented political intervention to get her case reconsidered; this may be possible if media interest in the case continues, but it could be a long haul. At least the tabloid press, who created her as a folk devil, now appear to be siding with her.
A final thought. The Court of Appeal, in suppressing evidence and issuing decrees to limit public access to information, such as banning articles published abroad,[6] is still trying to act as if the internet has not been invented and that word of the dissenting scientists will never come to light. The reality is that within a year or two the majority of those interested in the Lucy Letby case will have seen sufficient scientific refutation of Evans’ testimony to accept that in layman’s terms a miscarriage of justice has occurred. Someone, (would the CCRC dare?), needs to tell the CoA that they should enter the 21st century and agree to hear from scientists better qualified than Evans as to what killed the babies; indeed, they may have to agree that nobody can know for certain what happened and then release Lucy Letby.
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
[2] Lucy Letby: killer or coincidence? Why some experts question the evidence | Lucy Letby | The Guardian
[4] Neutral Citation Number: [2024] EWCA Crim 748Case No: 202303209B4
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