Lucy Letby
It is now known that after the prosecution and defence had submitted their closing statements but before the jury reached a verdict, Cheshire Crown Court was provided with evidence that demonstrated conclusively that the scientific evidence used against Lucy Letby was wrong in virtually every possible respect. In a case that had lasted ten months and cost millions of pounds, no doubt this was very unwelcome news for Mr. Justice Goss who was presiding over the court.
What did the justice system do with the evidence offered? It attempted to shoot the messenger. The scientist who raised serious concerns that should have been addressed was instead threatened with prosecution for what was described as “flagrant and serious contempt of court.”[1] This prosecution was threatened in respect of a private website not accessible by the public that had been prepared solely for the use of Cheshire Crown Court. After receiving the threat of prosecution the scientist emailed a letter to the Attorney General, Victoria Prentis, and the Lord Chancellor, Alex Chalk MP, outlining how the evidence in the Lucy Letby case was incorrect. They did not respond.
What has the justice system done with the information that raises serious concerns about Lucy Letby’s convictions for murder? It has not just ignored it, it has reinforced the errors via Court of Appeal (CoA) rulings that, in effect, rewrite scientific laws. This places the Criminal Cases Review Commission (CCRC) in an invidious position given its automatic deference to the CoA.
As has been stated countless times, the CCRC can only refer a case to the Court of Appeal (CoA) when the CCRC considers that a real possibility exists that the CoA will agree to hear aspects of the case again with a view as to whether ‘new’ evidence would have influenced a different verdict in the original trial. This requires the CCRC to try to think like CoA judges and anticipate what they will find acceptable. Frequently, this involves the CCRC in conducting desktop exercises to find legal reasons not to refer a case. For this reason, while the CCRC may please the CoA they are bound to disappoint the persons who make submissions arguing that they are innocent.
The CoA and CCRC are not interested in questions of innocence or guilt, merely the correctness in law of a jury decision. The process of appeal, above all, is preoccupied with reinforcing the privilege of a Jury to reach a verdict deemed appropriate after hearing the evidence delivered in an adversarial context, even if the jury’s decision may seem illogical. The overriding principle of the appeal system is that the decision of the jury must be upheld regardless of whether it is right or wrong. Our appeal system tends to protect that principle at all costs, the implications of which many jurors probably do not realise at the time they make their decision.
The problem of incorrect expert witness testimony has a long history and the Crown Prosecution Service is responsible for causing a good deal of problematical and outright erroneous testimony to be given by alleged expert witnesses for it is they who accept unqualified experts to give evidence in trials.
As an example among many, consider the recent trial and appeal lodged by Lucy Letby. It is now apparent that much of the evidence given by medical ‘expert’ witnesses was either factually incorrect or should have been subject to robust challenge. However, the prosecution evidence was not challenged effectively by Lucy Letby’s defence and no witnesses were called to rebut erroneous medical or statistical evidence.
In hearing Lucy Letby’s appeal the CoA has effectively impeded any further examination of the reliability of the expert witness claims made in the first trial. By doing so, it has ruled that there is nothing inappropriate about a retired paediatrician modifying the registered cause of death in seven infants whose deaths were initially deemed via postmortem examination to be natural. To make things worse, the CoA was unmoved by the reality that 6 out of 7 of the deaths were established by a qualified pathologist and confirmed by a Coroner. The CoA also decided that a Doctor who retired from practice 15 years prior, and who is not a pathologist, neonatologist, nor forensic investigator, is nevertheless an appropriate individual to conduct a forensic investigation identifying causes of death that he has stated in his own documentation as being benign and harmless.[2] Lest we forget, this was a case where a 34 year old woman faced spending the rest of her life in prison as a Category A inmate if the appeal was denied.
In supporting the errors of Cheshire Crown Court it appears that Court of Appeal judges have no hesitation in rewriting the laws of physics and medical science in favour of ‘junk science’. For example:
“A further change to medical and forensic discourse surrounding venous air embolism, as set down by the CoA, is the mechanism by which venous air embolism causes death. The CoA accepts that the evidence provided shows that air injected into a vein passes through the veins, enters the heart, and passes through the pulmonary artery, where it causes circulatory collapse. Unfortunately, the CoA’s definition of venous air embolism is factually incorrect. The cause of death in venous air embolism is due to the air bubble forming a clot and that air-clot becoming stuck in the pulmonary artery. Because air is compressible, the air bubble and associated debris cannot pass through the pulmonary artery. Thus, in every forensic pathology textbook, death due to venous air embolism is brought about by pump failure in the heart due to the air becoming stuck in the pulmonary artery, whereas the CoA is claiming that this finding is wrong, and circulatory collapse is what causes death. Indeed, circulatory collapse might occur in arterial air embolism, where air in the arterial system blocks the blood supply to the organs, including the skin, thereby causing tissue damage and skin colour changes. However, venous air embolism is the apparent cause of death in these cases”[3] (emphasis added).
There are numerous other examples of the CoA rewriting the medical textbooks. (Click here for reference).
In its determination to uphold Lucy Letby’s convictions for murder the CoA has allowed the factually incorrect evidence of prosecution witness Dr Dewi Evans to dominate their ruling. Dr Evans’ research and report in 2019[4] utterly contradicts his claims made in court in 2022/2023. Indeed, the CoA remarked that injected air into the stomach of infants was harmless and that the expert witness, Dr Evans, stated as much in 2019. So was Dr Evans correct in 2019 or was he correct in 2022/2023 when he told the jury that the process of pushing air down a nasogastric tube into the stomach of a baby was sufficient to kill a baby and that this was a cause of death of three separate babies? What is a non-expert jury expected to believe when this kind of twaddle is given to them as evidence?
It was not just Dr Evans who misled the court. For example, Professor Hindmarsh testified that there are no studies detailing the adsorptive properties of insulin, which is the affinity for insulin to stick to virtually any surface. However, Hindmarsh’s’ statement was inaccurate. There is a substantial body of research relating to this phenomenon, and it shows that such adsorptive properties of insulin to the venous lines can result in a decrease of insulin delivery by as much as 70%. There is further evidence that insulin forms bonds to the bag delivering the solution, and this can reduce the delivery of insulin by as much as 60%. This means that in simple terms 60-70% of the insulin is not delivered to the patient but ‘sticks’ elsewhere. Professor Hindmarsh failed to make any of this essential and relevant evidence available to the jury and failed to give it any consideration in his testimony.[5]
Thus, how can the CCRC function effectively as the final hope for people claiming to be innocent if it simply accepts all of the scientific errors made by the Cheshire Crown Court and the CoA? The CCRC has little, if any, expertise in medical science. Even if the CCRC did understand the medical science, given the restrictions of the real possibility test, in considering any submission from Lucy Letby the CCRC is obliged to ignore ‘fresh’ factually correct scientific explanations in favour of the erroneous scientific reasoning outlined in the CoA judgement. Would the CCRC dare to tell the CoA that their assessment of venous air embolism is wrong? Or, that the medical expert witness that they have relied upon should never have been allowed to give evidence?
What is abundantly clear is that the CoA has resolved that there is no longer a requirement for evidence to be correct, rational, and presented by authentic experts. Indeed, the Crown Court trying Lucy Letby made it clear that it did not want to know that the experts in the case were mistaken and deceiving the Court. However, another recent revelation was that evidence presented in the first trial showing which staff came in and out of the baby unit she worked on was incorrect, how much more evidence was wrong?[6]
It seems that the logic behind the real possibility test stymies any intervention by the CCRC in the case of Lucy Letby and consideration of incorrect medical testimony. There is a state of stalemate with increasing comment by various medical practitioners that the evidence presented at trial was, at best, contentious, yet there is seemingly no route open to achieve a retrial.
What is clear, and is now being voiced by various concerned parties, is that an adversarial trial environment is simply the wrong mechanism for considering complex medical/scientific issues and an inquisitorial approach would be a better way of establishing the facts.
It seems that the only hope for Lucy Letby is that there are influential people willing to raise her plight in the public arena. It is reported that David Davis MP plans to ask questions about the case in Parliament when it resumes in September. Private Eye magazine has taken a keen interest in the issues surrounding medical evidence. The problem is that this kind of pressure often takes years to have an effect. Lucy Letby requires the Justice Minister Shabana Mahmood to take an immediate interest in the case and demand that there is a retrial where accurate medical evidence can be assessed.
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] Correspondence from Cheshire Constabulary dated 5 July 2023.
[2] Dr Evans, a retired medic is permitted to include evidence used to describe pulmonary vascular air embolism (air embolism due to damage to the neonate’s lung resulting in air bubbles forming in the blood returning to the heart) in place of actual evidence to describe venous air embolism (which occurs when air is trapped in the pulmonary artery, causing sudden cardiovascular collapse). Essentially, the CoA has permitted evidence that a diagnostic determination of a distinct physiological state can be identified using criteria from a wholly distinct and unique physiological state. See New Precedents: Reviewing the CoA Judgment in the case of Lucy Letby (scienceontrial.com)
[4] Dr Evans wrote a ‘Review of Published Literature regarding Air Embolus in the Newborn Infant’ in July 2019, by which time he had provided over 40 reports for the police.
[6] The Crown Prosecution Service (CPS) acknowledged this in August 2024.
Comments