ANNEX (TO CLOSING SUBMISSIONS ON BEHALF OF FAMILY GROUPS TWO AND THREE)
The Executive’s Application (cont.)
(g) The evidence relating to Child F is particularly problematic. Child F is referred to as Baby 6. The prosecution alleged, and the jury accepted, that Child F suffered profound hypoglycaemia having been administered with manufactured insulin through his feeding bags. The key evidence in support of that allegation was a blood test result showing a high level of insulin alongside a low c-peptide. The report of the Panel concludes that “Exogenous insulin is unlikely to be the cause of hypoglycaemia because the C-peptide was not low for preterm infants…the Insulin/C-Peptide (I/C) ratio was within the expected range for preterm infants, insulin autoimmune antibodies (IAA) which are common in preterm infants bind to insulin and increase measured insulin levels, and the immunoassay test is unreliable because interference factors like sepsis and antibiotics can give false positive insulin readings.” The Panel summary is not transparent as to the source of this evidence but the introduction to the report states: “The panel also relied on the reports of external experts in engineering, Professor Geoff Chase and Helen Shannon, for information about insulin and c-peptide testing (Annex). These experts were instructed by those representing Lucy Letby.” The Annex confirms that the opinions expressed about the reliability of the insulin/c-peptide results were not derived from the Panel’s independent analysis but were taken from a report prepared by experts instructed by Letby’s legal team. The experts relied upon by the defence team are a New Zealand based Professor of Mechanical Engineering and a Chemical Engineer. The evidence presented by the prosecution at trial was from Professor Peter Hindmarsh, a Professor of Paediatric Endocrinology at University College London and Great Ormond Street Hospital, London and a specialist in childhood diabetes (Court of Appeal paragraph 29). The Inquiry will note that all of the professionals giving evidence before the Inquiry were unanimous in saying that the blood test results for Child F were indicative of exogenous insulin. It is also notable that Letby’s defence team do not appear to have disputed that Child F had been deliberately given exogenous insulin.
(h) The approach of the Panel also appears to adopt some lines of argument that were excluded during the original trial, or which have been excluded by evidence given before this Inquiry. In relation to Child A, for example, the Panel identify a blood clotting disorder suffered by Mother A and rely upon that as evidence in support of the suggestion that Child A was prone to develop blood clots. This ignores the evidence given at trial by Professor Sally Kinsey (Haematologist at Great Ormond Street Hospital) that she had reviewed blood samples taken from Child A during his life and confirmed that he had not inherited his mother’s clotting disorder. This error arises from the absence of experts in Haematology from the Panel and from an apparent failure to review or consider the evidence given at trial. That Child A had not inherited his mother’s clotting disorder was accepted by the defence at trial. The Panel also ignored the evidence from Dr Marnerides and Professor Arthurs in relation to Child A (as it did with Child O) that: “The evidence showed that in life, Baby A had air bubbles in his brain and lungs; and immediately after his death, a lot of air was found in his great vessels (Court of Appeal at paragraph 190).
(i) The Panel include within their general findings that: “Poor plumbing and drainage, resulting in need for intensive cleaning: this was a potential factor in Stenotrophomonas maltophilia colonization and infection”. The Inquiry has heard evidence about potential concerns at the CoCH regarding infection passing from the plumbing and that this was considered at the time and excluded as a potential source of harm to the babies. The defence called evidence from a hospital plumber at trial, who referred to certain plumbing problems that had occurred in the unit but crucially none that occurred at or about the time of any of the incidents referred to within the indictment (Court of Appeal paragraph 5). This statement therefore appears to be ignorant of the issues raised at trial, presumably due to the fact that the experts on the Panel were unaware of the evidence given at trial.
637. The Families are concerned that the Panel appear to be describing issues that have already been ventilated at trial or which were considered as part of the first Appeal. At their highest, the panel put forward alternative explanations for why some, but not all, of the babies collapsed and/or died based upon a review of the medical records and some, but by no means all, the evidence called at trial. It is difficult to see how a panel of experts of a single discipline provided with limited evidence could reach a better conclusion than experts of multiple disciplines considering the evidence in the round. It is unclear to the Families why Mr McDonald (or his Instructing Solicitors if he has them) would instruct multiple experts of a single discipline to undertake a limited review of the evidence and present their findings as superior to the evidence adduced at trial.
638. The elephant in the room, which Letby’s legal team appear to be studiously ignoring is that Letby had experts available to her at trial, who had access to all of the same material available to the prosecution experts and who provided multiple reports. As the Court of Appeal observed at paragraph 5 of their judgement in the first appeal: “The defence mounted a robust approach to the evidence that was called. Serious allegations were put to the numerous professional witnesses (including expert witnesses) who were called on behalf of the prosecution. Two points may be noted at the outset. First, though the defence instructed a number of expert witnesses of their own, and many reports were served from them before and during the trial, no evidence was called on the applicant’s behalf. The entirety of the evidence called for the defence consisted of the applicant’s own testimony, and that of an estate plumber, who had worked at the hospital since 1986. He gave evidence about certain plumbing problems that had occurred at various points in the unit: and of two particular incidents in the unit, but not on a date or around the time of any incident in the indictment. Secondly, to make a somewhat basic point, what was put to the prosecution witnesses in cross-examination, was not evidence, save to the extent it was accepted by the witness. More specifically, in the context of this appeal, suggestions made in cross-examination which were not accepted by prosecution witnesses and were not supported by evidence called on behalf of the applicant, are, as the respondent has submitted, irrelevant.”
639. The Families would also observe that it is easy to make points at a press conference and somewhat more difficult to do so at a trial, where the evidence being given is scrutinised and tested. One might suppose that the expert witnesses relied upon by Letby at trial would have managed to give a cogent and convincing account of their opinions at a press conference, in the unlikely event that they had been asked to attend one. Why then didn’t Letby call them to give evidence at trial? The Families will say that she is refusing to disclose this for one obvious reason, she understood that as clear as her experts were in their written reports, when faced with the full evidence, and when questioned by the prosecution, they would have effectively convicted her. The key deception in Letby’s approach in holding press conferences is that she can present evidence without the risk that it will be analysed, challenged or questioned. It permits her to control the narrative without having to explain why she chose not to call that evidence at trial. It is not new evidence but rather a re-hash of evidence that was available to her at trial and which could have been called in her defence, had she been willing to subject that evidence to scrutiny.
640. Even the evidence of Professor Shoo Lee cannot be regarded as new evidence, as the Court of Appeal observed in their judgment on the first appeal. Professor Lee gave evidence before the Court of Appeal. They commented (paragraph 187): “But even if the applicant could persuade us that there was a reasonable explanation for the failure to adduce Dr Lee’s evidence at trial, she faces a further – and in our view, insuperable – obstacle.
Even accepting for present purposes that Dr Lee is correct in his opinion that only one form of discolouration is sufficient in itself to diagnose air embolus in a neonate, the proposed fresh evidence cannot assist the applicant because it is aimed at a mistaken target. The core of the proposed evidence is that, save for that one very specific form of discolouration, it would be wrong to diagnose air embolus on the basis of skin discolouration alone. But as we have said when considering ground 2, there was no prosecution evidence diagnosing air embolus solely on the basis of skin discolouration. Dr Evans and Dr Bohin relied on the differing forms of skin discolouration observed in individual babies as consistent with air embolus. Their evidence in that regard was in our view entirely consistent with the observational study in the Lee and Tanswell paper, and with Dr Lee’s review of 64 cases since that paper was written. Indeed, Mr Myers realistically accepts that skin discolouration – other than the one type which Dr Lee states is pathognomonic of air embolus – is indicative of circulatory collapse which may be associated with air embolus and that air embolus may be associated with a variety of skin discolouration. In short, the prosecution witnesses did not fall into the error which the proposed fresh evidence seeks to assert they made. The proposed evidence is therefore irrelevant and inadmissible.”
641. It is difficult to see how the Court of Appeal could reach a different position with regard to the new evidence adduced by the International Panel. Altering the text of his original study, as Professor Lee did prior to the press conference in February 2025, to provide greater clarity as to what that study meant, does not amount to fresh evidence any more than the clarity that he sought to offer when giving evidence to the Court of Appeal in 2024. In any event, as the Court of Appeal observed above, the clarification of that evidence does not overcome the insurmountable hurdle described by the Court of Appeal in the extract above and therefore does not progress the issue further.
642. The Families would also observe that in providing evidence based upon medical records that were available to Letby’s defence experts at trial the Panel also do not provide fresh evidence. A defendant is not entitled to refuse to call evidence at trial that would harm her defence, only to thereafter produce evidence from different experts addressing the same issues and claim a right to retrial in the hope that they might do better next time around. Insofar as the evidence from the International Panel seeks to raise new arguments, it is firstly not clear that these are in fact new arguments – with many or most of the same issues having been examined at trial. Secondly there are obvious deficiencies in the disclosure of material to the experts, methodology and breadth of expertise that would inevitably undermine the evidence if it were presented at trial. The jury were entitled to consider whether there were alternative explanations for the deaths and collapses, indeed various alternatives were postulated at trial. Having heard all of the evidence they concluded that Letby was guilty of murder and attempted murder beyond all reasonable doubt. It is fanciful to suggest that this evidence would have caused them to reach a different conclusion.
643. The Families will say that there is no obvious benefit to stopping the Inquiry now, indeed there are clear and overwhelming disadvantages. The purpose of the Inquiry has never sought to address whether Letby murdered or harmed babies on the NNU between June 2015 and June 2016 but rather to examine the response of the CoCH to that event. The Inquiries findings with regard to that response have broad application to numerous patient safety issues across the breadth of the NHS. The importance of this Inquiry goes beyond preventing the next healthcare serial killer. It will provide benefits to patients in numerous scenarios. It should, the Families hope, lead to a more open, honest and transparent culture within the NHS. It should, they hope, lead to a safer NHS. That goal should not be lost in the face of noise.
644. The approach by the executives to halt this Inquiry, and indeed by Letby’s supporters to do the same thing is, insofar as the Families are concerned, a naked attempt to prevent the Inquiry from reaching conclusions that criticise the actions of the executives. From Letby’s perspective she is keen to control the narrative and prevent the events that occurred between June 2015 and June 2016 being set out in a way that she cannot control. It is, as the Inquiry heard occurred following June 2016, an attempt by Letby to use her own victimhood as a way of deflecting attention away from her actions. None of these motivations are reasonable or credible reasons for stopping now.
RICHARD BAKER KC
SARA SUTHERLAND
ALEX JAMIESON
ROCHELLE RONG
