The Appalling Lucy Letby Judgment Ignores Vital Legal Precedents of Wrongfully Convicted Mothers

The evidence against Lucy Letby is so obviously flimsy that the Appeal Court’s decision to deny her leave to appeal makes Britain’s judicial system appear rotten to the core. The reality is more complex: while Letby’s trials have highlighted serious questions about our whole system of justice, it must also be acknowledged that there have been cases in the past involving multiple baby deaths or collapses in which meticulous and carefully reasoned judgments show an admirable and responsible exercise of judicial authority. The truly appalling thing about the Lucy Letby case, once it reached the Court of Appeal, has been the way in which these vital precedents have been disregarded by judges Sharpe, Holroyde and Lambert.

The single most important judgment that the Appeal Court discounted was the successful appeal of Angela Cannings ([2004] EWCA Crim 01). Three of Mrs Cannings’s babies had died and there had been a further two, or possibly three, acute episodes in which the babies had apparently come close to death. In quashing her (two) murder convictions, judges Judge, Rafferty and Pitchers set out a principled framework for how to investigate such cases. This framework recognised the limits of what could be known in instances where suspicion had been aroused by the lack of a definite explanation for how babies had died, rather than because of direct evidence of harm. The judges also warned of the pitfalls of an alternative framework, one that viewed repeated baby deaths as evidence enough of a crime and, driven by this assumption, tended to view anything and everything as evidence confirming this. This framework raised the “dreadful possibility” of imprisoning innocent people for murder (para 179).

To understand the broader context of the Cannings case, it is necessary to take a step back to the 1980s when Dr. David Southall showed conclusively — by secretly filming them — that mothers sometimes deliberately harmed their own babies. Professor Sir Roy Meadow had classified such behaviour with the baroque label “Munchausen Syndrome by Proxy”. The work of Southall and Meadow had a powerful impact on U.K. paediatricians. It gave them a new role; not only were they doctors, but they were now detectives. Further, in the realisation that such assaults undoubtedly occurred, it was a short step to ask how many ‘cot deaths’ were deliberately caused by the mother out of sight at home. A line of reasoning developed amongst paediatricians that where a baby died unexpectedly, with no apparent natural cause, there was a distinct possibility that this was due to deliberate harm, probably inflicted by the mother. Given this reasoning, it seemed to follow that if unexpected deaths happened repeatedly in the same family, then the case for deliberate harm was more or less proved. Using reasoning of this type, in 1998 Sally Clark had been convicted of murdering her two baby sons. In 2003, however, she was released after evidence came to light that showed infection as a possible cause of death for one of the babies.

This was the background against which the Appeal Court judges decided to free Mrs Cannings. They argued that although a natural cause of death in a baby might not be identified it might well exist, and that when baby siblings died, sharing the same genes they might well share the same fatal vulnerabilities. In the details of its judgment, the Court of Appeal cited both medical literature and expert witnesses at the trial to demonstrate that these views conformed to a substantial body of medical opinion which stressed much was unknown about sudden infant death, and that genetic factors could link sibling deaths. 

The judges also criticised a rival point of view, widespread amongst paediatricians, that on the basis of repeated unexplained baby deaths, they could infer, with a fair degree of certainty, that someone was killing them. This criticism was shared by at least two of the expert witnesses at the trial. One had described it as “current dogma” (para 18) and a second as “a fashion nowadays” (para 20) that when there was more than one sudden infant death in a family for which a natural explanation could not be demonstrated, this in itself was seen as enough to establish an unnatural cause, and further one that was very probably deliberate harm. The comment of the Appeal Court was that “if that is the fashion, it must now cease” (para 20).

The judges did not suggest that it was wrong to be suspicious in cases where multiple babies had died in a family. On the contrary, they stated that it was right and proper. However, they warned that without positive evidence of harm, it should not be assumed that any crime had been committed. It was wrong, therefore, to take as a starting point the reasoning that three unexplained fatalities provided “a very powerful inference that the deaths must have resulted from deliberate harm” (para10). Once this faulty stance was taken, “the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion” (para 11). Thus, the judges explained how anything done by a mother in her grief might be interpreted as not normal and showing that she was the culprit.

In their detailed review of the evidence given at Cannings’s trial, the Appeal Court judges implied that fitting the evidence to predetermined guilt was not confined to putting damning interpretations on the behaviour of the mother, but extended to presentation of some of the medical evidence. In particular, the judges pointed to unqualified assertions by Professor Meadow that the suddenness of a death or a collapse was exceptional, and so tended to rule out natural explanations. This evidence, the judges said, ought to have been tempered by findings in the medical literature that it was not uncommon for infants to appear well until shortly before death (paras 150-52). Such one-sided evidence could be contrasted with more balanced evidence given by some of the other medical experts at the trial, evidence that acknowledged uncertainties. For example, a common symptom, bleeding, which was found in the lungs of one of the babies, was described as possibly having natural or accidental causes (para 70).

With tragic foresight, the judges in the Cannings case predicted exactly what would happen if their warnings were ignored. In the lucy Letby case, their warnings were ignored and the way of thinking that they had criticised was applied in the most extreme and least justified of ways. The “dogma” or “fashion” amongst paediatricians that a series of unexplained deaths meant foul play, and that they could act the part of detective with a prime suspect, had not ceased; at the Countess of Chester Hospital, it was still very much in place. The framework that the Appeal Court had condemned was adapted to a nurse in an intensive care unit: there had been three deaths, they were unexplained, so someone had killed them. The frame was a little clumsy; Letby was not a mother and the babies were not being cared for at home, out of view but in apparent good health; they were premature and in a busy ICU, but no matter. After the first three deaths, all in June of 2015, Letby was put into the frame, and once there, everything she did was interpreted accordingly. Her most innocent actions, such as sending a sympathy card to bereaved parents, were given sinister explanations. And as further collapses and deaths occurred, it was decided that even though she had been seen to do nothing, she must have done it. This insistence that everything was down to Letby exposed a further clumsy feature of the frame she had been placed in; the deaths and collapses that were being attributed to her were, by and large, explained. To make them “unexplained” and hence make them fit the frame, the accusing doctors ruled out natural explanations for deaths or collapses that they themselves had made (such as NEC in the death of Baby E), as well as those found in the coroner’s reports.

The experts at Letby’s trial also placed her in the frame that the Appeal Court had warned against in Cannings. They presented one-sided accounts of the evidence rather than recognising uncertainties. Letby was said to have killed twins and triplets, but the possibility that genetic factors might link their deaths by natural causes was not acknowledged. Common symptoms, like the presence of air or of bleeding, that might have any number of natural and accidental causes, were said to be evidence only of deliberate harm. Fragile neonates were described as doing well, almost as if they were healthy full-term babies. The apparent suddenness with which they collapsed was not acknowledged as a common occurrence but said to be strong evidence of deliberate harm.

The Appeal Court judges in the Letby case were invited by Letby’s defence to consider this earlier case with its many remarkable parallels and with the principles it contained, but they took no notice of it and turned down her leave to appeal. This confirmed the final words of the judges in the Cannings case, that unless their warnings were heeded, a potentially innocent woman might end up imprisoned for life when “she should not be there at all”. “In our community, and in any civilised community,” the judges concluded, “that is abhorrent.”

Dr. Peter Hayes was for many years a Senior Lecturer in Politics at Sunderland University. With academic research interests cutting across medicine and law, he authored numerous publications in both medical and legal journals.