Has this other miscarriage of justice case just blown Lucy Letby's bid for freedom out of the water?

Independent

4 days ago

There was bad news recently for a nurse convicted of killing multiple patients when the Court of Appeal rejected the nurse's claim of wrongful conviction. Colin Campbell (formerly Colin Norris) had been found guilty in 2008 of murdering four elderly women patients, and attempting to murder a fifth patient, all by insulin poisoning during his time at Leeds General Infirmary. Campbell was aged 32 at conviction and will turn 50 next year. He is 17 years into a life sentence with a minimum term of 30 years.
Campbell's failed appeal – the 49-page judgment was published just two weeks ago – has implications for the appeal prospects of Lucy Letby, who has multiple hurdles ahead of her as she seeks to prove she has been the victim of a gross miscarriage of justice. Not least are her convictions: Letby is serving 15 concurrent whole life sentences – seven for the murders of babies in her care, and eight more for the babies she was found to have attempted to murder, all at the Countess of Chester Hospital, a decade ago, during 2015 and 2016.
Letby was aged 33 at conviction on 14 counts in mid-2023. The 15th conviction came after a retrial a year later.
As things stand, she will never be freed, but events in the case since have moved at a pace that has sometimes seemed dizzying. Letby has become a celebrated cause, promoted at press conferences and in interviews by her post-trial counsel, Mark McDonald.
Concerns about her case have been raised by a variety of public figures, from Lord Sumption, a former Supreme Court judge, to MP Sir David Davis, to former politicians such as Nadine Dorries and the former health secretary Sir Jeremy Hunt, who recently said the case required 'urgent re-examination'.
Commentators and social media posters have struggled to keep up, not always grasping the significance of developments.
When, a few days ago, Cheshire Police arrested and questioned three unnamed former executives at the Countess of Chester Hospital on suspicion of gross negligence manslaughter, many people appeared to think that this was in Letby's favour – the truth at last!
The circumstances of the arrests have not been made public, but I cannot help wondering if they are related to a reluctance of hospital managers to accept the claims of doctors that Letby could be responsible for the cluster of deaths. It was hard to think the unthinkable then, as now. Meanwhile, babies died or were harmed.
Cheshire Police then announced they had sent a file of potential further cases against Letby to the Crown Prosecution Service, who must now decide if it is in the public interest to prosecute.
This was no news to me, as I had heard months ago that the CPS was already sitting on at least three files of further murder charges which were considered 'good to go', although she has still not been charged yet.
Meanwhile, in another theatrical moment, some weeks ago, McDonald went to Birmingham and held a press conference on the steps of the headquarters of the Criminal Cases Review Commission. He had invited the media to observe the delivery of his client's case that she had been wrongly convicted and that the CCRC should exercise its powers to refer the case back to the Court of Appeal, forthwith. He said the application 'blows the case out of the water' and demonstrates that 'no crime was committed'.
I think there has since been at least one meeting between Letby's legal team and the commissioner leading the case – the 'nominated decision maker' as we used to call them during my own term of office as a CCRC commissioner, from 2013-2018.
Ultimately, according to the Criminal Appeal Act 1995, three commissioners will sit in judgment on Letby's application, forming a case committee to decide whether the case can be referred, on the legal test that there is a real possibility the convictions would be overturned.
There does not have to be a committee – the application can be rejected by a single commissioner. But given the current agonies the CCRC has suffered, over its failings in the Andrew Malkinson case and the resignations of its chair and chief executive, it would be a brave commissioner who made that decision alone.
But how long will any decision take in a case of such legal and medical complexity? While her appeal's starting point is that 'no crime was committed', Letby was, lest we forget, convicted (of the first 14 counts) after a trial that lasted ten months, in which a jury heard both the prosecution and defence cases in great detail.
Although I was never involved in the Colin Campbell case, it was being dealt with by colleagues before, after and during my term in office. Campbell's application – in itself complex, though not as complex as Letby's first – came to the commission in 2011 after his own failed appeal.
The CCRC does not deal with just one case at a time. It has hundreds of them, thousands even, and they are divided out among caseworkers – case review managers – who work on multiple cases at the same time, trying to manage the expectations of applicants, and keep moving applications forward; updating records, chasing inquiries and keeping abreast of what is happening.
Campbell's case turned on the strength of the evidence that the elderly patients had died or been harmed due to the exogenous administration of a massive dose of insulin. Two of the Letby murders were also attributed to insulin injection and Letby herself had agreed in evidence that such a poisoning must have occurred, while denying she was responsible.
It took the CCRC six years to reach a provisional decision to reject Campbell's case. But it changed its mind following further submissions and agreed to refer the case to the Court of Appeal in 2021 (10 years after the initial application), based on fresh medical expert opinion but noting that the case against Campbell (like the case against Letby) had been 'wholly circumstantial'.
It took a further four years for the case to be heard, due to various technical, legal and medical issues that affected the progress of the appeal.
The court was emphatic in its rejection of the new evidence. It also rejected any attempt to base the appeal on statistics. As it said, the prosecution was not permitted to make claims based on the rarity of such events to support its case for guilt – and the appellants could not claim that there were other deaths in which Campbell was not involved to support its own argument that he was innocent.
This all has ramifications for Letby. Her supporters often invoke the tragic case of Sally Clark, who was first convicted and then acquitted of murdering her two newborn babies. Central to Clark's conviction had been the claim of a prosecution expert Roy Meadow that the likelihood of two sudden infant deaths in the same family was 1 in 73 million. When that claim was discredited, together with some new medical evidence, the case against Clark fell apart.
No such claims were made during the Letby trial, and, contrary to the claims of many, her case does not appear to hinge on statistics.
Her appeal will be determined instead by the strength of the new medical evidence – from the so-called international expert panel and others – and the extent to which it undermines the case that was put at trial, when, it should be noted, many alternate explanations for the baby deaths were canvassed.
You must have new evidence for an appeal. It must be capable of belief, it must be significant enough to have made a difference to the outcome and there must be a good reason why it was not called at the original trial. If Letby can cross those hurdles, she might be in with a chance.
But the Campbell case – although not entirely similar to Letby – is a warning to those with high expectations that Letby's acquittal is a 'slam dunk'.
The Court agreed that the case for insulin poisoning at Campbell's original trial had been overwhelming. It disagreed with claims that the new evidence at appeal completely 'changed the landscape'. The Court of Appeal had no doubt it said about the safety of Campbell's five convictions. His appeal was dismissed.
Although the three Campbell appeal judges did not directly refer to Letby, they made it clear they were aware of the wider interest in the outcome of Campbell's case and seemed keen to emphasise the care they had taken, collectively in weighing the merit of the 'intricate debate between eminent scientists'.
That was no doubt a marker for Letby– if her case ever gets past the CCRC and back to the Court.