Letby barrister: US death row inmates have better shot at freedom than wrongfully convicted Britons

Telegraph

05-04-2025

Mark McDonald is sitting in the Great Hall refectory at Lincoln's Inn, demolishing a jerk chicken, surrounded by a 'Who's Who' of barristers and judges.
Since taking on the case of Lucy Letby, the barrister has been rocking boats in the legal establishment with a string of press conferences protesting the nurse's innocence and is refusing to keep a low profile.
'I have a black-tie reception here tonight with Lady Justice Thirlwall,' he says, speaking of the judge conducting the public inquiry into how Letby could have been stopped.
'Let's see if she talks to me.'
Mr McDonald believes keeping the case in the public eye is the only way to beat a system that is wholly stacked against those who are wrongly convicted. For him, the mills of justice are not just grinding slowly but are often coming to a complete standstill.
Letby is serving 15 whole-life orders after she was convicted of killing seven babies and attempting to murder seven others at the Countess of Chester Hospital between 2015 and 2016. She has already been in jail for five years.
This week, Mr McDonald submitted a 700-page report from a panel of world-leading experts to the Criminal Cases Review Commission (CCRC), which deals with potential miscarriages of justice.
The experts insist there were no murders or attacks, simply a perfect storm of poor care, prematurity and natural illness. The Telegraph is now calling for the CCRC to send the case back to the Court of Appeal.
'If I cannot prove, with all these experts, that these convictions are unsafe, then the criminal justice system is in a poor state of affairs,' said Mr McDonald.
'What it would mean is that if you're innocent and wrongly convicted in this country, you've got no chance.
'I spent a lot of time working in America with inmates on death row, and I am reaching the conclusion that if I was wrongly convicted I'd rather be an American than an English person.
'They have an effective court of appeal, because if they get it wrong someone dies. We all thought things would get better after the Birmingham Six or the Guildford Four. But it didn't, it actually got worse.'
If Mr McDonald is not toeing the line like a traditional barrister it is because he isn't one. He grew up on an inner-city council estate in Birmingham and left school at 16 to become a sheet-metal worker.
He later trained as an operating theatre assistant, working for the NHS for 14 years, which he says gave him first-hand experience of how things can go wrong in hospitals. He had to put himself through night school to gain the A-levels needed to study law.
In 2007 he founded the London Innocence Project, a non-profit working to exonerate those wrongfully convicted and helped found Amicus, a charity working to represent inmates on death row in the US.
After working in Palestine with the Bar Human Rights Committee he founded the Labour Friends of Palestine and the Middle East, and made an unsuccessful bid to become MP for Stoke in 2019.
He recently adopted two children with his wife Sarah Macken, the chief executive of Telespazio UK, who herself has stood as a Conservative candidate in Wolverhampton and East Ham.
The Letby case is a natural fit for Mr McDonald, who is also defending Ben Geen, a nurse serving 30 years for killing two of his own patients and harming 15 others at Horton General Hospital in Banbury in 2003 and 2004.
He has also fought hard to clear Michael Stone, who was convicted of the murders of Lin and Megan Russell and the attempted murder of Josie Russell in Chillenden, Kent in 1996.
Serial killer Levi Bellfield has confessed to the murders on two occasions, giving explicit details of the attacks, and a case review is ongoing. But Stone is still in prison despite there being no supporting forensic or witness evidence.
Similarly, nobody saw Letby do anything. Doctors became suspicious because she was on duty when each of the babies collapsed or died.
' There was no direct evidence, no forensic evidence, no CCTV evidence, no motive, no post-mortems identifying any issues and everything that happened at the time was seen to be a natural death,' said Mr McDonald.
'This is not the case where something went wrong at trial and the convictions are unsafe because of a problem with the way that the jury were directed, or something like that.
'This is a case where no crime was actually committed, which means she's innocent.'
Since her conviction, dozens of doctors, nurses, statisticians, law experts and scientists have come forward to criticise the way evidence was presented to the jury, including Lord Sumption, the former Supreme Court judge, who last weekend said Letby was 'probably innocent'.
Letby has already been denied the leave to appeal on two occasions, and the barrister is anticipating a lengthy review process. But he believes if the case is referred back to the Court of Appeal, the prosecution will have a far tougher job than last time.
His panel of experts includes Prof Neena Modi, a former president of the Royal College of Paediatrics and Child Health, Prof Mikael Norman, the founder of the International Society of Evidence-Based Neonatology, and Prof Helmet Hummler, the senior medical director for the European Foundation for Care of Newborn Infants.
'They're going to have to get experts of a far better quality than they had at trial to match that of the experts that have come forward because I have 24 of them, and I will call all of them because we have to expose what's gone wrong here,' he said.
'I mean, if you're a neonatologist working at Leicester Royal Infirmary would you want to go up against this lot? Because I'll fly them over from Tokyo and Sweden and Germany and Canada. I will call them all.'
Chester Police and the Crown Prosecution Service argue that Letby's original defence team could have called experts at her trial to make all the points that are now being raised.
Mr McDonald says it is not so simple. Experts are frightened to get involved in contentious cases, particularly baby killings, and some have been referred to the General Medical Council for speaking up in Letby's defence.
'In these types of cases you cannot use experts in England, they won't go against the establishment,' he argues.
'So you have to go to North America, you have to go to mainland Europe and unless you know that you are always going to get the wrong experts. They will do a report for you but they will always ultimately agree with the prosecution.'
It is notable that while Mr McDonald has been the public face of the campaign, Letby herself has remained largely in the background. She has never spoken about the case outside of the trial and police interviews and has refused requests to meet or correspond with journalists.
'She has read every report and she is on top of this completely, and she is feeling more hopeful,' he said.
'I've not gone down the path of talking about her as a person because that's what happened throughout the trial, they focused on her rather than focusing on the evidence.
'The evidence is she was one of the most experienced nurses on that unit. She loved her job. She worked all the hours God sends and did extra shifts.
'So yes, she was always there because that is what she did, that was her job, and yes she got the sickest babies because she was asked to look after the sickest babies, because she was one of the most experienced nurses.'
He added: 'I think one of the most concerning things is there but for the grace of God go any of us.
'Your child falls over and you take it to A&E and you get someone saying 'well I think this is a non-accidental injury', your child dies in the middle of the night and someone is saying you did it.
' Nurses don't want to work any more and frankly, I don't blame them.'
The CCRC can only refer cases to the Court of Appeal if there's a 'real possibility' that a conviction or sentence will be overturned.
But the Law Commission is consulting on whether that bar is too high and looks set to recommend that reviewers should focus on their own view, rather than trying to predict the court's response. The dial may be about to shift in Letby's favour.
The changes could not come soon enough for Mr McDonald.
'The criminal Court of Appeal needs massive reform, and I believe that there are innocent people in prison who are being failed by our system,' he said.
'There is still a reluctance to overturn what a jury has decided.
'I'm hoping now that in Letby they will see what I think many people in the country now see, that this is a concerning, unsafe conviction that needs to be overturned.'