The devil’s advocates

What a turnaround. At the start of last week, those who believe Lucy Letby is innocent had no truck with boffins and eggheads from the medical establishment. They preferred to do their own research. In their telling, Letby’s former lawyer, Ben Myers KC, was useless. Judges were worse. Doctors only covered their own backs. None of the expert witnesses who testified in either of her trials knew what they were talking about. The opinion of the prosecution’s lead expert witness was worthless, because he was retired. The Letbyists made an exception for the occasional statistician if they got on board the Lucymobile. But, as a rule, if you asked them where to find the truth about her case, they would recommend maverick podcasts, obscure websites and anonymous X feeds.

It only took one press conference to turn these fearless free-thinkers into boot-licking credentialists. The panel had been assembled by Letby’s new lawyer, Mark McDonald, and the star turn was Professor Shoo Lee, a retired neonatologist and health economist, who discussed seven of the 15 counts of murder and attempted murder of which Letby was convicted and explained that they were not murders or attempted murders at all. Lee is an eminent neonatologist, as his new admirers were quick to point out, and he was summarising the findings of a team of experts, mostly other neonatologists, who had been working in pairs, pro bono, on each of the seven charges at Lee’s request. These medics were also described as eminent, thereby distinguishing them from all those clueless doctors and professors who think that Letby is guilty.

Lee’s intervention is of particular interest since one of his studies helped convict the nurse. A paper he co-authored in 1989 looked at the rare condition of air embolism in newborns. Dr Ravi Jayaram, the consultant paediatrician who worked with Letby, has said that he remembers the ‘physical chill that went down my spine’ when he read it, because it appeared to describe the same unusual blotches that he and his colleagues had seen on some of the babies when they collapsed.

Lee disagrees. He says that the unusual rashes observed by Letby’s colleagues are different to the discolouration discussed in his 1989 paper. He argues that his original paper did not make a distinction between venous (in the veins) and arterial (in the arteries) air embolism. Letby is accused of killing the babies via injecting air into their veins, causing venous air embolism, which Lee, in a later study, claims does not present with skin discolouration. He says that his research should not have been used against Letby. When Letby sought leave to appeal last year, Lee testified on behalf of the defence.

Some of the babies did present with skin discolouration. The shift leader on duty when Baby A collapsed described him as ‘very white with sort of purply blotches and very cyanotic’. Whatever these blotches were, many of the doctors and nurses who saw them said that they had never seen anything like them before.

But let us take Lee’s word for it that the blotches must have been caused by something else other than venous air embolism. He is, after all, eminent. The bottom line is that his protestations cut no ice with the judges at the Court of Appeal who, in July, said that it had never been claimed that the presence of such rashes proved air embolism, nor did the absence of them disprove it. There was, they said, enough evidence of air embolism without his study and the jury would have convicted her if it had never been mentioned. We can never be certain that the latter is true, but that’s how it went. Leave to appeal was rejected.

By this time, if not much earlier, Lee had become convinced that not only was his study misused, but also that Letby is an innocent woman. And so he started emailing his contacts around the world to see if they would help him out. As he told The Sunday Times last week, after Letby’s appeal failed, her legal team told him that for her to have any chance of being released ‘you have literally got to find a different person or thing that caused the death’.

This is where all the eminent professors come in. Their summary report, published on Monday, gives very brief alternative explanations for seven of the murders and attempted murders. Innocent explanations for the other deaths and collapses are to be published in the near future and will be sent to the Criminal Cases Review Commission (CCRC), which is the only realistic pathway to the Court of Appeal for Letby.

There is no doubt that Lee’s experts are nearly all at the top of their profession or somewhere near it and their concerns should be taken seriously. It is less clear whether they had access to all the information available to the experts who were called in the original trials, and there is a strong indications that they had little idea of what was said in those trials.

Letby’s defenders often portray the prosecution case as being a one-man crusade by the retired paediatrician Dr Dewi Evans, who has become something of a hate figure on the loony Letbyist fringe. In fact, his analysis was peer-reviewed and approved by the late Dr Martin Ward Platt, who can fairly be described as an eminent neonatologist, and was tested in court by neonatologist Dr Sandie Bohin, forensic pathologist Dr Andreas Marnerides, paediatric radiologist Professor Owen Arthurs, paediatric haematologist Professor Sally Kinsey, paediatric endocrinologist Professor Peter Hindmarsh, paediatric surgeon Dr Simon Kenney and paediatric neuroradiologist Professor Stavros Stivaros, as well as other medical experts and numerous doctors at the Countess of Chester Hospital.

The purpose of all this name-dropping is to show that there are eminent and distinguished medical experts in both camps. Who is the humble normie to believe? The temptation is to say that the experts cannot make up their minds and that there is therefore reasonable doubt. Perhaps if Letby had elected to call an expert medical witness for the defence, the trial would have descended into a shouting match of ‘oh yes it is’ and ‘oh no it isn’t’, and the jury would have acquitted her in a fog of confusion. We will never know, but it is important to remember that it was Letby’s call to make. She decided to call in a plumber instead of any medical experts. This was part of an attempt to suggest the hospital’s poor drainage system was to blame for the babies’ deaths.

And yet there are reasons to have more faith in the prosecution’s witnesses than in Lee’s assembled team of eminent Letbyists. It is much easier to present a hypothesis at a press conference in a hotel in front of Peter Hitchens and Nadine Dorries than it is to be cross-examined in a court of law. I would not be surprised if Dewi Evans or another expert rebuts some of the claims made in the Lee report in due course, but even a layperson can spot some significant flaws.

This is the second press conference organised by Letby’s lawyer, Mark McDonald, in the past two months. At the last one, we heard from Professor Richard Taylor, a neonatologist who was inevitably described as eminent and who accused a doctor of accidentally killing Baby O with an inappropriate injection. He did not name the doctor but he was easy enough to identify. Taylor said that he would not be able to sleep at night if he was in the doctor’s shoes, knowing that he had sent a young woman to jail for life for a medical blunder of his own doing.

It was a powerful and emotive speech, but there was no sign of Taylor at this week’s press conference and neither of the neonatologists who prepared the report for him were mentioned. The explanation for Baby O’s death in Lee’s report is no longer the medical accident Taylor described it as in his press conference. We are now told that it was the result of liver damage ‘caused by traumatic delivery’. Yet Baby O was a triplet whose mother gave birth via a planned Caesarean section and there is no evidence of any injuries sustained during the course of it. Where did this idea come from and what happened to the hypothesis that McDonald’s other expert was so insistent upon a few weeks ago?

Taylor also insisted in December that the insulin test that showed deliberate poisoning of Baby F was wrong. The readings were simply too high to be believable, he said. This week, however, Lee’s experts told us that the insulin test was correct but that there was nothing abnormal about the readings. The new report claims that Baby F’s ‘C-peptide was not low for preterm infants’ and ‘the Insulin / C-Peptide (I/C) ratio was within the expected range’. This is a baffling interpretation of the facts. In a healthy body, levels of C-peptide should be five-to-10 times higher than the level of insulin. The clue that Baby F had been given synthetic insulin was that he had extremely high levels of insulin and incredibly low levels of C-peptide. You don’t need to take my word for it – and why should you? – because Dr Anna Milan, a principal clinical scientist at the lab where the test was done, told the Thirlwall Inquiry, which is examining the circumstances around Letby’s crimes, that Baby F’s ratio of C-peptide to insulin, which should have been between 5:1 and 10:1, was recorded as 0:0 because the C-peptide was at ‘an undetectable level’. On what planet is that within the ‘expected range’?

According to the eminent scientist who produced this section of the report (a biomedical engineer who used to work for General Motors), Baby F did not collapse as the result of being given insulin, but developed hypoglycemia because he had sepsis. The trouble is that, as the court heard during the trial, his blood gas reading did not indicate sepsis. Similarly, Lee’s report strongly implies that Baby A had anti-phospholipid syndrome and explicitly states that he died of a blood clot. Yet the paediatric haematologist Professor Sally Kinsey told the court that Baby A didn’t have the disease and that his blood count results were normal.

Much of the evidence that convicted Letby came out during the trial and would not necessarily be found in medical records. For example, Lee’s report says that Baby D, who had pneumonia, ‘continued to deteriorate after admission’ whereas the neonatologist who gave evidence in court said that she was ‘improving’ and ‘getting better’. This is perhaps the kind of thing that eminent medics can have an honest disagreement about. But the mother of Baby D told the Thirlwall Inquiry the same thing and when Letby texted another nurse to tell her that the child had died, she received the reply: ‘What!!!! But she was improving.’ Are we supposed to discount the testimony of people who were there at the time?

Eminent and distinguished medics though they may be, much of what they are saying is legally hopeless if not actually hopeless. In their attempt to exonerate Letby for the attempted murder of Baby K, they claim that this tiny girl desaturated due to the incompetence of another easily identifiable doctor who supposedly ‘did not understand the basics of resuscitation, air leak, mechanical ventilation and how equipment that were commonly used in the unit work’. This is one of several swipes at the doctors who blew the whistle on Letby that we have seen in recent months, but it completely misses the point. She was not convicted of the attempted murder because of medical evidence, but because of the eye-witness testimony of Dr Jayaram who saw her standing over the desaturated baby in question, with the endotracheal tube dislodged and the alarm muted, doing nothing. Lee’s report claims that ‘there is no evidence to support dislodgement of the endotracheal tube’. But there is. From Dr Jayaram. And the jury believed him.

The Court of Appeal will not tolerate appellants repeating arguments that have already been made and repackaging evidence that has already been presented. The case of Baby K is done and dusted and Lee’s eminent neonatologists are bringing nothing new to the table.

Likewise, Lee’s team’s explanation for Baby D’s death is pneumonia. She was born with pneumonia and pneumonia was listed on her death certificate. The defence maintained that she died of pneumonia and the prosecution succeeded in showing that she didn’t. I’m only an armchair barrister, but it seems to me that this argument has no more road to run with the Court of Appeal which, as McDonald himself acknowledges, has a low tolerance for ‘expert shopping’ – that is, scouring the world for experts who have a different opinion.

Unless they are keeping an enormous amount of their powder dry, Lee’s team of devil’s advocates are wasting their time on a lost cause. These press conferences are nothing more than publicity stunts designed to sway public opinion in Letby’s favour in the hope that the CCRC buckles under the pressure. In the wake of its mishandling of the Andrew Malkinson case, this strategy might just work, but if it does I expect the Court of Appeal to throw it out and Letby to stay in prison.

Letby’s supporters have described her case as the biggest miscarriage in British history. If she were innocent, it certainly would be. It would also be the most bizarre. Imagine for a moment that Shoo Lee is right and none of the deaths and collapses was due to foul play and many of them were due to the incompetence of doctors. How did we get from there to here? How did an innocent nurse end up in prison?

The chain of events required for such an unjust and unsettling outcome was not explicitly discussed at the press conference but it is implicit in all the chatter about Letby being a ‘scapegoat’ for a failing NHS. It would require a group of doctors who were under no suspicion whatsoever to panic about a spike in deaths in their hospital that most people in Chester, let alone the rest of the country, were completely unaware of. It would mean that despite a review by the Royal College of Paediatrics and Child Health in 2016 that did not point the finger of blame at any doctors, they nevertheless decided to feed a colleague to the wolves. And luckily for them, there was a nurse who just so happened to have been at every unexplained collapse and death in the past year or so, with these incidents following her from the night shift to the day shift and stopping whenever she went on holiday. Just as fortunately, this young woman, who had once failed her final-year student nurse placement because she lacked empathy, also had a habit of falsifying medical records, misleading colleagues and looking strangely excited when infants died.

These doctors then raised concerns with NHS managers who didn’t want to know and who actively discouraged them from looking into the spike in deaths. And yet still – inexplicably – they proceeded to pursue this innocent woman until they got the police involved, even though it meant having to answer tough questions in court, making their hospital world famous for harbouring a serial killer, and ultimately resulting in a public inquiry into why they failed to stop her.

In a further stroke of luck, it turned out that the nurse they used as a scapegoat because of the unlikely coincidence of her invariable presence at every suspicious event – to the extent that she was nicknamed Nurse Death by junior doctors – also happened to be obsessed with looking up the parents of dead babies on Facebook. She also stole 257 handover sheets from the hospital, which she took with her whenever she moved house and kept a selection of in a bedroom at her parent’s house in a box marked ‘KEEP’. She did this despite claiming that these pieces of paper meant nothing to her and despite having a paper shredder which she later told the police she didn’t own. Better still, she had been writing notes saying things like ‘I AM EVIL I DID THIS’ and ‘I killed them on purpose’ and she started imagining a life in prison long before there was any suggestion of a criminal investigation.

Once the criminal investigation was underway, dozens of collapses and deaths were scrutinised in great detail and yet, in a final stroke of good fortune for the doctors, nothing pointed the finger of blame at them. The nurse went to prison and the doctors lived happily ever after, apart from all the Letbyists calling them liars and murderers.

It is a ludicrous proposition. Finding a ‘scapegoat’ for the failings of a hospital that was not particularly bad by NHS standards would have been an insanely dangerous gamble for no reward. If fatal medical blunders had occurred, the safest course of action for the doctors would have been to shut up and get on with their job, which is what the NHS managers – who had no suspicions of anyone – wanted to do.

But they didn’t do that. They knew that they had done no wrong and they strongly suspected the malevolent presence that hung over the neonatal wards in 2015 and 2016. Her name was Lucy Letby and her best chance of seeing a courtroom again is when she is tried for further crimes.

Christopher Snowdon is director of lifestyle economics at the Institute of Economic Affairs. He is also the co-host of Last Orders, spiked’s nanny-state podcast.