David Davis MP has declared he is 90 odd per cent certain that Lucy Letby is innocent and will campaign for a retrial. This is very bad news for the Thirlwall lnquiry, whose chair brushed off the growing number of expert voices as “noise”, and who has conducted the inquiry on the axiom of the truth of the conviction, refusing to hear witnesses who do not think Letby is guilty beyond reasonable doubt. My reflection on this falls into two parts, firstly an attempt to state where this rapidly unravelling prosecution case now stands, and secondly to ask whether the full legal procedure for assessing scientific witness quality was observed through the trial.
The case against Letby is an “hypothesis to account for a difficulty”, to steal John Henry Newman’s phrase. The hypothesis was developed by senior doctors in the Countess of Chester Hospital neonatal unit to ‘explain’ a spike in deaths. There is no need to rehearse the narrative leading to her arrest and two convictions, this has been forensically set out in Rachel Aviv’s famous and judicially censored article in the New Yorker; it really is a core text, and was censored even while a hysterically hostile press coverage was allowed to remain available. It has not received a rebuttal, just been ignored. Statistician Richard Gill has compiled a rehearsal of useful websites. Dr. Phil Hammond, who writes the ‘MD’ column in Private Eye, is also essential reading, taking us through the second trial and into the equally skewed Thirwall Inquiry and he is getting letters from nurses who want to testify on behalf of Letby but have been blocked.
The hypothesis for deliberate human agency being responsible for neonate deaths because Dewi Evans, lead expert witness for the prosecution, opined that there was “no other explanation”, has been crumbling. His controversial handling of nurses’ shift rosters, excluding doctors and other staff on the unit, pulled out Letby as on shift when many critical incidents happened, and so made her the target for the police investigation. Evans cited two insulin cases, not leading to deaths, for which better science has emerged showing a non-murderous cause for the high insulin level, to sit alongside Rachel Aviv’s counter-evidence. The BBC’s latest coverage of the case has sought to defend the prosecution case for the reliability of the insulin immunoassay tests.
But subsequently yet more top quality scientific evidence has emerged to counter the prosecution’s evidence in the neonates alleged to have overly high levels of insulin. Five top experts have agreed that the prosecution case for Babies F and L fails. ‘Insulin tests used to convict Letby cannot be relied upon, scientists say‘, reports Sarah Knapton in the Telegraph. Specialists argue results are notoriously unreliable as antibodies can cause “interference”. “Without confirming the integrity of the results then you are entering into the land of guessing,” Dr. Adel Ismail, a retired consultant in clinical biochemistry and chemical endocrinology who was the head of an NHS pathology lab for 25 years, told Knapton. And that is precisely what the prosecution barristers, and their expert witness Dr. Evans, gave to the jury, the land of guessing. This is what the vastly long and tendentious trials offered by way of evidence against Letby: guessing and a hypothesis spun like Ariadne’s web out of fresh air. This torpedo holes the case against Letby, but the legal establishment will seek to ignore it, brush it aside and continue to deny her the appeal demanded by the flow of damning criticism of the prosecution case. The Criminal Cases Review Commission is notoriously unwilling to act and will even keep a victim of miscarriage of justice locked up despite compelling evidence while it dawdles and delays.
Hypotheses, for scientists, are put up to be challenged by counter-evidence, and this Letby hypothesis continues to weaken as the weeks go by and major errors appear in the prosecution hypothesis, errors which undermine the trustworthiness of its method and deduction. For example, the X-ray on which Dewi Evans relied for the alleged killing of Baby C proved to be dated on a day she was not present. She was not there – and the whole hypothesis is based on her ‘being there’ – so this should seriously vitiate the theory. But no, the establishment virtually ignores this rend in its allegation. Likewise, when it turned out that Letby was not even present when an I.V. bag she had supposedly poisoned with insulin was given to a baby, the prosecution stuck to its guns, putting forward the utterly improbable hypothesis that Letby had left the poisoned bag in the fridge for another nurse to pick at random and inadvertently use.
Like a medieval witch, if she ‘was there’ her very presence could kill, and even if she was not. The start of the second trial for attempted murder of baby K, where Dr. Jayaram famously “looked at his watch” and recalled the exact time when she was supposedly alone with the neonate, vitiated his testimony since the door swipe data backing up his story was after all wrong. Another nurse had come into the unit, not gone out, Letby was not alone – so surely the case against her was bust. But no, the jury convicted her despite this torpedoing of the timing and solo opportunity for our assassin. The jury must have been befuddled to convict on the attempted murder of baby K as once again, there was no evidence of her harming any baby at all.
We are forced to ask, given that Evans’s X-ray proved nothing against Letby even on his own “must have been murder” axiom, and the court’s ignoring of this flat contradiction of his allegation by date and by method, would anything have sunk Evans’s evidence in their eyes? It seems to be invested with a holy impregnability in the eyes of the judge, barristers, jury, the Appeal judges: the logic is “she must have been an assassin, so never mind the dates and methods, she must have killed Baby C”. The logic is a deduction from the hypothesis, not from witness evidence of crime, nor forensic evidence.
We need to note that the defence failed to take up this golden opportunity in court, just as it had astonishingly agreed with the prosecution in the insulin cases that insulin must have been injected exogenously, thus helping the hypothesis of the prosecution entirely unnecessarily. The defence failed to put its own expert, Dr. Hall, in the witness box, despite the fact he sat through the trials and regards them as simply unfair. The adversarial trial system depends on the defence being equally funded as the prosecution, and we can only speculate why it proved to be so ineffective.
The Thirwall Inquiry is turning out to be rather like the Post Office Inquiry with its Fujitsu fundamentalism and the Covid Inquiry, predicated on lockdowns being utterly necessary and vital to saving lives, refusing to heed any counter-evidence which has grown louder and louder. Thirlwall is operating on a similar axiom which the establishment is desperate to maintain: that Letby the brilliant killer hypothesis is now proven. There is no reasonable doubt whatsoever, and the gainsayers are “noise” who were not at the trial. On 17th October, Eirian Powell, the neonatal unit manager, told the inquiry that there never had been any evidence showing Letby had harmed anyone. Letby the silent assassin was indeed a hypothesis, not a witnessed wrongdoer. No forensic evidence was ever produced against her. She was on duty more than other nurses as more experienced with neonates and keen to develop as a nurse, plus she was said to be saving for a house. On October 18th barristers, acting as if inquisitors in Seville, bullied Powell into saying what she clearly did not believe, that Letby was guilty, despite lack of evidence. The “inquiry” is anything but fair and rational. This inquiry will surely become a matter of shame for the legal profession in future years when Letby is finally exonerated, as seems to be becoming increasingly inevitable.
The hypothesis looks weaker and weaker by the day. The post-it notes of anguish have subsequently been found to have been written on the advice of a counsellor when she was being constantly pressed to admit guilt. This is not evidence of anything but a persecuted soul. She had taken home handover notes and shoved them under her bed, wrong but explicable in rushed world of nursing with paper put into pockets at the end of shift, certainly nothing to do with a cunning assassin’s behaviour. As the counter-evidence to the hypothesis grows, so does the determination of the establishment to prevent any further scrutiny of this case. They don’t want to hear ‘the noise’; the fall of this judicial temple is damaging to contemplate. Appeals have been denied.
The case is a standout example of confirmation bias: how do we pin this on Lucy? The case reversed the burden of proof, she ended up having to prove her innocence, and the mass of reasonable doubt was barely mentioned in the judge’s summing up. The jury itself was accused of having made its mind up before the trial began by a jury member. The judge let it carry on. He also ignored the excoriating condemnation of Dewi Evans’s expert testimony in another case by Lord Justice Jackson, damning it as worthless, one-sided and aimed at a particular result. Evans has subsequently been forced to admit he was wrong in embolism evidence over triplet baby R because Letby wasn’t present at the time, but for those up to their necks in this case his reputation seems invincible. The jury, uninformed and no doubt confused, seemingly did as it was told. The seething hatred of Letby in the media surrounding the case and both trials will have seeped through. The outcome of this theatre of the absurd, with all its flummery and stress on procedure over truth finding, is the scapegoating of a nurse to save the face of a unit and its doctors.
Dr. Timothy Bradshaw is a retired Lecturer in Theology at the University of Oxford.
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