Between 2015 and 2016, Lucy Letby harmed babies in her care with the intention of killing them. The means of harm varied: causing air embolus by introducing air via intravenous lines; forcing air into the abdomen via nasogastric tubes; force feeding milk; poisoning by administering insulin; physical trauma. She alone was present on the unit at the time of all the deaths and deteriorations.
Following an internal review of the deaths, and the suspension of the applicant from nursing duties, the police began an investigation in May 2017. Letby was convicted in August 2023 of seven counts of murder and seven of attempted murder of infants at the neonatal unit at the Countess of Chester Hospital. She was acquitted on two further counts of attempted murder and the jury was unable to agree on a further six counts of attempted murder. The Court of Appeal rejected Letby’s application for leave to appeal against her convictions after the credibility of Prosecution’s lead expert, Dewi Evans‘ testimony was affirmed.
Evans, a retired paediatrician, was asked to review initially 33 sets of clinical records involving death or deterioration of an infant on the unit and then a further 28 sets of records.
He was asked to provide an opinion on the cause of the collapse of each baby. As the lead expert during the investigation, he advised the police to seek further expertise from the fields of histopathology; paediatric radiology; paediatric haematology; paediatric endocrinology; paediatric neuroradiology and paediatric surgery.
Pediatrics Expert Witness
Dewi Evans provides expert medical advice regarding clinical issues where child abuse is suspected or where there are allegations of clinical negligence. He has prepared reports for the Court for over 25 years and has given evidence in court in Wales, England, Ireland and Northern Ireland.
He was appointed a consultant paediatrician in 1980; he had been trained in neonatology although, at the time, this was not a specific sub-specialty, hence he was never a consultant neonatologist; he set up a neonatal intensive care service in Swansea; he designed a new neonatal unit in 1990.
Discussion by the Court
Dewi Evans
On appeal, Letby argued that Evans’ evidence should have been excluded from the jury’s consideration because he was not a neonatologist; he had not been in full time practice since 2009; most of his current work was purely as an expert witness; he could not be considered sufficiently independent because he had been part of the original investigation; his evidence was not sufficiently reliable to be admitted; he had been the subject of previous adverse judicial comment.
The Court, however, found him to be a “highly experienced consultant paediatrician” with “decades of clinical hands-on experience with neonates”. Moreover, to the extent that he was acting as an investigator or director of the investigation, he was not doing so in a way that precluded him from being an expert witness in the case. Evans’ evidence was provided without him being given access to the other circumstantial material, so it was uninfluenced by matters outside his expertise and knowledge. Also, his opinions were independently corroborated by other expert witnesses.
As for being the subject of previous adverse judicial comment, Evans pointed out that the document in question was not in fact an expert witness report for Court, but a letter to solicitors in a care case. It had been used by them without his knowledge or consent in applying for permission to appeal. The criticism was put to him; he had not been aware of it before; he explained his understanding of the context; the matter was left for the jury to consider. The Court found nothing wrong with that approach.
Air Embolus in Neonates
Letby sought to admit fresh evidence in the form of two reports from a neonatologist, Shoo Lee, to address the defense assertion that the prosecution experts were wrong to diagnose air embolus on the basis of a research paper. The Court held that ““although their direct clinical experience of air embolus in neonates was inevitably very limited, each of the prosecution’s expert witnesses was well qualified in their respective fields to give the evidence which they gave.”
Defense did not call any expert witness evidence at trial
It was open to the defense to call expert evidence of their own. They did instruct a number of experts and serve their reports on the prosecution, but they did not call any expert witness evidence at trial.
In the trial, the result was that the prosecution expert witnesses were challenged strongly by the defense; but the points made in the challenge could only become evidence in the case if, either the defense called their own witnesses who could then provide that evidence, or the prosecution witnesses accepted the points made in the challenge.
Held
The Court of Appeal admitted Dewi Evans’ testimony and rejected Letby’s application for leave to appeal against her convictions.
Key Takeaway:
Evans was familiar with the courts’ approach and ready to deal with the inevitable challenges of the criminal justice system.
The issue of admissibility (whether or not evidence is put before the jury) is a question of law which is dealt with by the judge. If they rule that the evidence is admissible, it is then considered by the jury. The ruling to admit the evidence can be challenged on appeal.
The issue of the weight to give to any evidence is a matter entirely for the jury. Counsel can seek to persuade them to take one view or another of the evidence. The judge must leave it up to the jury. What weight the jury has in fact given to each piece of evidence might be inferred from the verdict that they reach.
Case Details:
| Case Caption: | Court of Appeal, Criminal Division |
| Case Number: | 202303209B4 |
| Court: | Letby V. R |
| Order Date: | July 2, 2024 |
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