The conviction of Lucy Letby more than two years ago for the murder and attempted murder of premature and vulnerable newborns in the neonatology unit of the Countess of Chester Hospital is coming under ever-increasing scrutiny as the Criminal Case Review Commission (CCRC) ponders referring the case back to the Court of Appeal. Cards on the table – with the experience of a decade and more making television programmes (Rough Justice, Trial and Error) investigating miscarriages of justice I am one of those who is convinced she is innocent and that this case will have dramatic consequences for many parts of the system that put her in the dock. Stephen Phelps writes
Within a matter of months Lucy Letby may be back in the Appeal Court. If she is found not guilty it will be on the grounds that there were no murders and that the babies collapsed and died of natural causes and inadequate care. But the Countess of Chester, and NHS maternity services will not be the only organisations to come under the microscope. So much so that she may well be sacrificed to the protection of the state. History can tell us how and why this might happen.
- You an read about the Lucy Letby case in the latest PROOF magazine including Stephen Phelps on the media, Prof Richard Gill and Dr Svilena Dimitrova on How to become a serial killer (without killing anyone) and an interview with the barrister Mark McDonald representing the former nurse
In a 1980 Appeal Court ruling, Lord Denning, Master of the Rolls, considered the possibility that West Midlands police officers had committed perjury at the trial of the Birmingham Six and that the convicted men had been beaten into making false confessions. That the Six might be innocent, he said, opened up ‘such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further’.
Fast forward almost half a century and the evidence that Lucy Letby was wrongly convicted is growing by the day. But when it is referred (as it surely must be) what if the Court of Appeal does overturn her conviction? That would open up a truly appalling vista that covers not mere police corruption but failings in every arm of the state apparatus.
Failing maternity units: the Countess of Chester will be revealed to be just another failing maternity unit – along with Nottingham, Shropshire and many others. The collapses and deaths were the result of a toxic and understaffed maternity unit. A unit where, in the years leading up to these events, the hospital shed its most highly qualified and experienced nurses (Advanced Neonatal Nurse Practitioners) to make savings of some £300,000. A unit where expertise had been sacrificed to the (financial) expedience implicit in the idea of self-governing Hospital Foundation Trusts.
A failing NHS: Those babies collapsed or died in an ageing and outdated hospital, part of a critically under-resourced NHS. When journalists start asking the questions they should have asked immediately after the conviction, they will discover that (largely as a result of this misguided case) nurses are turning away from neonatology in their droves. But be under no illusion that the consequences of acknowledging Letby’s innocence stop with the NHS. Let’s consider the progress of this case through the entire system.
Policing: After Letby was convicted, Cheshire Police posted a YouTube video ‘Operation Hummingbird’ slapping themselves on the back – a slick, professionally produced video (complete with syrupy piano music) in which they freely admitted they knew nothing about medical matters when the case dropped onto their desk. How much did that video cost the public purse, you may ask? Well, not very much considering the estimated £10 million they had spent on the investigation. Nevertheless it’s a useful document in which they themselves set out just how inept their operation was. I’ve seen it before, in the work I’ve done in this field over the years – a provincial force usually used to dealing only with what one wizened old barrister referred to as ‘cooking murders’. This one, they suddenly realise, is the one they’ll be telling their grandchildren about in years to come. A career-maker. Throughout the investigation no-one it seems, had the nerve to put up their hand and say, ‘hang on, nothing to see here’. Remember, in fifteen cases of murder or attempted murder, in a unit where clinical staff outnumber patients, no-one saw Lucy Letby actually do anything to harm babies.
CPS: Yet the CPS allowed this case to go ahead. Largely on the basis of an infamous duty roster chart which showed that Letby was on duty for all the cases brought against her. Well of course she was. They couldn’t charge her with causing babies to collapse and die when she wasn’t there. And there were many other collapses and deaths when she wasn’t present. During their investigation the police instructed a leading statistician, but the CPS told them to stop. Had they not done so it’s possible the case would have evaporated because the chart simply doesn’t stand up to scrutiny.
Expert Evidence: But the Cheshire police were not alone in their ineptitude. They had an ‘expert’ to advise them. Just the one. A retired paediatrician (not, you’ll note, a neonatologist). Not the panel of six or seven specialists in different relevant disciplines, as recommended to them by the National Crime Agency, but just this one retired ‘expert’ whose licence to practice had run out some two years before he volunteered himself to Cheshire police. So confident was Dr Dewi Evans of his abilities that he told the police he was the only expert they needed. Which must have seemed helpful to the police as genuine, highly-qualified specialists, the leaders in their field, are becoming less and less willing to get involved in court cases, which take up far too much time and expose them to attacks by barristers trying to undermine their evidence by attacking their competence. And those attacks are just one part of what’s wrong with the adversarial system when it comes to medical or fraud cases.
The Court System: An altercation in a pub spills out onto the street. There’s a fight. One man falls to the ground banging his head on the kerb. He dies in hospital. Police charge his attacker with murder. The facts are simple. The prosecution argues those facts one way, the defence the other. The assailant’s fate will be decided by a jury of twelve ordinary men and women – people who (arguably) know a great deal more about pub fights than the judge or the barristers. Now imagine that same jury has to decide the fate of a young nurse charged with seven murders and eight attempted murders. A case with (as the Operation Hummingbird video helpfully tells us) thousands of pages of complex medical notes and reports. A case which lasts for ten months. Where prosecution and defence argue with one another about how complex facts should be interpreted, and the jury is bamboozled by science. Is this really the best way to get at the truth? Surely, when Letby’s conviction is quashed there must be some examination of changing the system so that guilt or innocence is decided on the basis of a search for the truth instead of the theatre of a jury, with no access to independent advice of their own, deciding between competing narratives. Let’s stick with juries for the straightforward case, but we must find another way to deal with complex medical or fraud cases lasting many months.
The CCRC: The CCRC has a fundamental flaw. It can only refer a case if there is a ‘real possibility’ the Court of Appeal will overturn the conviction. So often they seem to be trying to ‘second guess’ the CoA instead of investigating whether there has been a genuine miscarriage of justice. Set up with powers to independently investigate, the CCRC no longer seems capable of doing so (try Googling ‘Bamber and Milbank’). To be fair to the Commissioners the ground has been cut out from underneath them over the past decade and a half. When the CCRC opened its doors in 1997 Commissioners were paid a relatively handsome £93000 a year for a position which was, as I’m sure you can imagine, full-time. But once we entered the years of austerity the CCRC must have seemed a soft target and the cuts began. With few in positions of power willing to fight their corner those cuts carried on to a point where Commissioners are now employed on a contract not unlike that of a pizza delivery kid – guaranteeing them one day a week at a daily rate of £460. What’s more they are able to work from home, whereas those of us who have done this work over the years know that there is no substitute for sitting together in an office to argue the key issues through. In the Letby case the CCRC’s failings have no doubt been exacerbated by the sheer volume of stuff that has been dumped on them by Letby’s current lawyer, but the point remains that this is exactly the sort of case they were set up to re-examine and re-investigate, and three years on from her conviction the CCRC has yet to decide how to act.
Journalism and the BBC: As a former employee of the BBC I am loath to join the right-wing chorus of attack, but this estimable organisation which gave us Rough Justice which did much to bring about the creation of the CCRC now has questions to answer about how it approaches high-profile cases like Letby’s convictions. The jury in the first Letby case deliberated for a total of 105 hours, over twenty-two days. Good reason to suppose then that conviction was not exactly a slam-dunk. Yet on August 18th 2023, on the very day those convictions came in, Panorama was able to broadcast Lucy Letby: The Nurse Who Killed, a complete programme predicated on her guilt. It must have been quite a while in the making. Panorama is supposed to be an investigative programme, carefully crafted deep-dives into serious issues. Yet in this case reporter Judith Moritz, who had followed the case throughout, seems to have drunk the Cheshire police Kool Aid. If they had another programme ready to go under the title Lucy Letby: My Nightmare Is Over, I’d like to see it.
Some weeks ago I was talking about the Letby case with a very senior Circuit judge. When I made the point that overturning this conviction would raise massive questions about every bit of the state system from the NHS, through policing, to the CPS and even the adversarial system itself, he leaned across the table and said ‘that’s the problem’. He didn’t elaborate, but the clear implication was that the Court of Criminal Appeal will, when it lands on their doorstep, be contemplating this appalling vista, which can only be avoided by upholding the conviction of a young woman who had the misfortune to be on the receiving end of all these failures. Send her back down and we can all continue to hang on to the idea that, here in England we have the best health service, policing and criminal justice system in the world. Whereas one thing the Letby case has told us in spades is that we no longer do.
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