The three ‘real problems’ with Lucy Letby’s case her new barrister is investigating

Lucy Letby has instructed a new legal team (Picture: PA)

Lucy Letby’s new legal team has highlighted three areas where there are ‘real problems’ with her case as they embark on a long legal fight to have her convictions for killing babies reviewed.

Letby, 34, was last seen in public declaring ‘I’m innocent’ as she was led away after being given a 15th whole life sentence for the attempted murder of a baby girl.

She had already been condemned to die behind bars having been found guilty by another jury of the murders of seven babies and the attempted murders of six others a year earlier.

Despite the Court of Appeal throwing out a challenge against those convictions, experts, media commentators and political figures have voiced concerns about the evidence used to secure them.

The Thirlwall Inquiry, set up to examine how Letby was able to harm babies in her care while working at the Countess of Chester Hospital and conditions in the neonatal unit, begins tomorrow.

The case took a fresh twist last week with the news Letby has instructed a new legal team, with barrister Mark McDonald tasked with applying to the Criminal Cases Review Commission (CCRC) to have the convictions reviewed and sent back to the appeal court.

Speaking to Metro, Mr McDonald revealed he is looking at the statistical assertion of a spike in deaths and the way Letby was identified as a sole suspect, the medical evidence used against her – in particular that relating to air embolism, and the reliability of the insulin testing.

He said: ‘For nearly two years we’ve had a pretty one-sided news story about her and about the case surrounding her. That’s not a criticism at all of the media, it’s just the nature of how things have read.

‘But it is clear to me that there are real problems with this case and that there could be a serious miscarriage of justice.

‘Just because there has been a trial, just because a jury has made a decision, it does not mean that this is not a miscarriage of justice.

‘Every miscarriage of justice that has happened in our history has happened after a jury has convicted.’

Experts coming forward ‘have got real concerns’

Letby is one of four nurses currently serving life in prison for murdering or harming patients.

Mr McDonald also represents another of those – Benjamin Geen, who was jailed for life in 2006 for murdering two of his patients and poisoning 15 others.

An application to appeal against those convictions was denied by the Court of Appeal in 2009 and two applications to the CCRC were refused in 2013 and 2015.

Like Letby’s, the case against Geen largely focused on what was described as an ‘unusual pattern’ of collapses with no obvious medical cause.

Prosecutors and experts said they could only have been the result of deliberate harm and Geen’s presence at each seemingly sealed his fate.

Supporters of Letby demonstrate outside the High Court in London during her appeal hearing (Picture: ZUMA Press Wire/Shutterstock)

Mr McDonald, who specialises in appeals and miscarriages of justice, said he is ‘literally right at the beginning’ of his work on Letby’s case.

But he has recently met with 22 experts, including neonatologists, paediatricians, anaesthetists and public health officials ‘all saying they have got some real concerns about what’s going on here’.

The ‘flawed’ statistical assertion

One of the planks of the prosecution case he has identified potential issues with is the assertion made in relation to the ‘spike’ in unexpected events in each case.

He said of the collapses in Letby’s case: ‘The statistical assertion was put before the jury to say there was a spike in deaths and that she was always on duty at the time of those deaths or when a patient has died that they feel is suspicious.

‘That analysis – that bold assertion – made by the prosecution, I think, is undermined by their failure to engage with statisticians to actually look at the comparative nature of the neonatal units.

‘Not a month goes past that we don’t hear of an obstetric unit or a neonatal unit or a children’s department having been criticised for its failure to have proper procedures in place, or its failure to have proper protections in place for its children and high death rates.

A general view of the Countess of Chester Hospital (Picture: Getty)

‘Without actually engaging with statisticians to do a comparison with a number of different units and looking at the full shift rota and doing it in a way that is blind – so they don’t have what is called confirmatory bias and a belief that this is the person we’re looking for, now let’s see when she was on duty and let’s see if there are any unusual deaths – that is the wrong starting point.

‘It needs to look at the different units to see whether or not there has been a spike and then look at the variables within that unit.’

Wider problems on the unit

The first review into the deaths on Letby’s unit at the Countess of Chester Hospital found it was understaffed, with junior staff feeling unable to call in consultants.

An investigation by the Guardian has seen findings of two other reports, which reveal the hospital was operating beyond its skills and capacity with staff ‘chronically overworked’.

Staff also lacked the expertise to deal with babies with serious needs and were working in a building struggling with a superbug and sewage backing up into its rooms, the newspaper reports.

A leading neonatologist, who has looked at each of the deaths in the Letby case, reviewing medical details given by the prosecution, is quoted as saying: ‘The overall impression is that of a neonatal unit that was out of its depth, slow to recognise problems and inexperienced in dealing with them.

‘This is not a criticism: they were a level-two unit that found itself having to provide level-three care [for the most critically ill and very premature babies].’

Letby is serving 15 whole life sentences (Picture: Chester Standard/SWNS)

Mr McDonald said: ‘We know at the time within the hospital that not all the staff were trained, not all the doctors were trained to a high level, there were problems on the unit, there was a shortage of ICU beds which meant that babies stayed on the unit longer than they should have done.

‘But all this needs to be put into a discussion around about whether or not an assertion is correct or not.

‘The only way you can do that is by putting all of those variables in, and then comparing it with other units to see whether or not there has been a spike.’

The medical evidence

With no CCTV or witnesses having seen Letby harming babies, much of the case against her was circumstantial and relied on the analysis of medical notes taken by two experts, Dr Dewi Evans and Dr Sandie Bohin.

Mr McDonald said he is ‘concerned’ by the fact that the prosecution relied primarily on the evidence of Dr Evans, particularly in relation to air embolism.

Mr McDonald said: ‘When it comes to medical evidence, I am concerned by the fact that primarily – not only, but primarily – the prosecution relied upon a paediatrician who had been retired for 15 years giving evidence before the jury.

‘Now, I am not attacking his credibility in any way whatsoever but I am attacking some of the science he has come out with and said, particularly in relation to air embolism.

‘I have now at my fingertips numerous medics saying they have got real concerns about the assertions made by the experts.’

Air embolism

Dr Dewi Evans was tasked by detectives in the summer of 2017 to look at a series of collapses on the unit and went on to write several reports about his findings.

Among the methods of attack he identified was injecting air into the babies’ bloodstream, causing an air embolism which blocked their blood supply and led to sudden and unexpected collapse.

Mr McDonald said: ‘The problem about air embolism is it’s very hard to detect, by the very fact that it’s air so it goes.

‘When we are talking about air and air embolism and we are talking about the force of air going into the body, going into the venous blood system, says the prosecution, causing death.

Screengrab taken from body-worn camera footage issued by Cheshire Constabulary of the arrest of Lucy Letby (Picture: Cheshire Constabulary/PA)

‘Now, the way it has been diagnosed by the prosecution experts we say is questionable.

‘This was tackled by the Court of Appeal, however I now have fresh medical evidence that counters some of the assertions that were put forward by the doctors at the trial and contradicts what was said and I think provides a fresh reflection on some of those issues the Court of Appeal had to deal with.’

Insulin testing ‘not suitable’ for use in courtroom

Mr McDonald said he will also seek to challenge the reliability of the insulin testing that was put before the jury.

The cases of two babies said to have been injected with insulin were pivotal.

Letby’s defence team during the trial did not seek to challenge the assertion they were poisoned, but argued that she had not done it.

Speaking about the testing used in relation to the insulin, Mr McDonald said: ‘Again, I have got real concerns about that because I have now got epidemiologists, people who built the machines for instance that say it is not reliable and shouldn’t be used [in court].’

He went on: ‘The prosecution say these babies were murdered. These are very sick and very poorly babies.

‘Their starting point was they were murdered and that came from, it would seem, one expert at the time who took that view who was retired paediatrician for about 15 years who seems to have formed that view.

‘If he is wrong, then they weren’t murdered.

‘This is a matter I need to look at and now I have already got medical doctors from a variety of different disciplines that are questioning whether or not he was correct in what he said in the witness box.’

Parents of babies ‘right to be angry’

Parents of some of the babies killed by Letby have hit out at the ‘hurtful and distasteful’ campaign to free her, saying it is fuelled by ‘lies and misinformation’.

Tamlin Bolton, who represents the families of six victims, described the speculation as ‘upsetting’ for all of her clients.

Speaking to BBC Breakfast on Monday, the solicitor said: ‘I can’t stress enough how upsetting that has been for all of the families that I represent.

‘And they have thought about so many ways in which they can try to address that and deal with it and make sure they put their voice across. But of course they’re restricted by wanting to keep themselves confidential and private.

‘So it’s a really difficult challenge for them to try and avoid social media, avoid the reporting about it.

‘But when you have children that are now eight or nine years old, they are looking at TikTok, they’re looking at social media and there are people claiming that the harm that was caused to them or their sibling was not caused by somebody who’s been found guilty of those crimes by a jury and whose appeals have been exhausted, and the Court of Appeal have also said she remains guilty of these crimes.’

Mr McDonald said: ‘I think the families are right to be angry and I completely sympathise with them.

‘My role is to see whether or not there are any grounds of appeal for the CCRC to send the case back to the Court of Appeal.

‘I hope it is done speedily, but sadly my experience with the commission is that it can sometimes take years. For both Lucy and the families, that would not be right or fair.

‘There are victims in the Ben Geen trial, there are patients there that suffered, and families.

‘If I’m right, if the defence team are right, then there was no crime committed here.

‘I am at the start of a long road here to pull all of this evidence together.

‘This is not going to go away. This is going to continue. This fight will continue for a long time to come.’

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