Letby Document Leak: Clear Evidence of Multiple CPS Disclosure Failings

Documents seen by the author appear to prove conclusively that information that would have helped Lucy Letby was withheld from her defence team by Crown Prosecution Service Mersey-Cheshire complex case officer Pascale Jones.

Geoffrey Cox: ‘For too long, disclosure has been seen as an administrative add-on rather than fundamental pillar of our justice system.’ Photograph: Dinendra Haria/Rex/Shutterstock (source: The Guardian).

Note: this article has been edited since publication, ostensibly to ensure compliance with GDPR regulation

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This article in many respects simply casts further doubt on the roster chart presented to jurors that they were told showed that,

a) there were 24 and only 24 suspicious incidents and

b) Letby was present for all of them.

Why is this article able to cast further doubt on the chart? Because disclosure documents have been leaked.

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Disclosure

This October 2021 post from Barrister Blogger noted that,

According to Exeter University’s Centre for Evidence Based Justice’s registry of miscarriages of justice, the second most common single factor in all British miscarriages of justice over the last 50 years – featuring in at least 28.5% of cases – has been “inadequate disclosure” of evidence capable of assisting the defence. It has almost certainly been a factor, if not the most important, in many more cases than that.

It also noted that,

You may not have noticed that last week was “National Disclosure Week.” I had no idea that there was such a week until the Crown Prosecution Service started tweeting about it last Wednesday. That the CPS is taking its disclosure duties seriously is of course a very good thing.

Ironically, this "National Disclosure Week" in October 2021 sponsored by the CPS and others promoting good disclosure practice coincided with decisions by Mersey-Cheshire CPS to not disclose information that would have helped Lucy Letby (the disclosure test stipulates that relevant non-sensitive unused material should be disclosed if it "assists the defence case or undermines the prosecution case").

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MG6C forms

An MG6C form is a schedule of non-sensitive unused material prepared by police disclosure officers which is then perused by the CPS to determine whether the material should be disclosed to the defence.

A description of each item of material is set out in the main column of the document, the heading of which is "Description and Relevance". The below note is included in the document under the main column heading.

Record below MATERIAL of any kind, including information and objects, which is obtained in the course of a criminal investigation and which may be relevant to the investigation; and RELEVANCE is that it has some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case. Do not speculate; if it is not considered relevant do not record it on the schedule. Give a sufficiently detailed DESCRIPTION of the relevant material for the prosecutor to make a decision on whether or not it should be examined.

To the right of the schedule is the section for the CPS decision with respect to each item, options for which are:

D = Disclose to defence

I = Item disclosable and defence may inspect

E = Evidence: Used to denote that an item listed or touched upon in the context of unused material scheduling has actually been incorporated into or adopted as part of the substantive prosecution case/evidence at trial.

ND = Document viewed and not disclosable: Used when the prosecutor has physically inspected or reviewed the actual material and determined it does not meet the disclosure test (it neither undermines the prosecution case nor assists the defence)

CND = Clearly not disclosable (by description): Used when the item does not need to be physically viewed because the written description on the schedule alone makes it obvious that it is irrelevant or does not meet the disclosure test.

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Suspicious incidents

It has been known for a while that,

a) Letby was not in fact present for some of the 24 supposedly suspicious incidents in the roster chart (see Appendix 1),

b) In the early stage of the investigation, Chief prosecution medical expert Dr Dewi Evans deemed as suspicious 10 clinical incidents in relation to nine babies which did not end up on the indictment because Letby had not been present, and did not deem as suspicious seven clinical incidents in respect of five babies that did (see Appendix 2).

Both of these demonstrated that the chart was not a presentation of objectively-defined suspicious incidents but evolved over time as prosecution medical expert opinions changed to fit the required narrative about Letby.

They should have killed the roster chart. If they didn't, the newly leaked documentation should.

Why?

1) it indicates that prosecution medical experts wrote, under oath, at least 19 witness statements in respect of 13 babies proposing they had been or may have been the victim of inflicted harm of some kind. None of these babies was on the indictment. Only one of them was on the list of 28 whose cases were given to Evans to appraise when he joined the investigation in July 2017.

2) it casts further and significant doubt on the prosecution experts' ability to correctly identify inflicted harm. If jurors had been told about these 19 medical expert witness statements, they would have, or at least may well have realised that the roster chart did not in fact show that there were 24 and only 24 suspicious incidents.

But they weren't told.

Why?

Because the CPS did not disclose them to the defence. The nineteen reports in the schedule of unused material were either marked ND (not disclosable) or CND (clearly not disclosable).

There is another important point to make here. Since charges have not been brought in relation to the 13 babies, and never will be, the parents will be forever wondering if their baby was attacked as the expert doctors said, under oath, they had been. While the bar is set extremely low for experts used by police forces and courts, surely, in a case involving babies, it was incumbent on the NCA, SIO Paul Hughes, CPS complex case officer Pascale Jones, and prosecuting barrister Nick Johnson to ensure that any accusation of inflicted harm of a baby would be or had been made by credible individuals.

It would have been hard enough for the parents to get the visit from a family liaison officer telling them their child was the subject of a police investigation. Harder still to learn that the expert doctors had concluded their child had been attacked. Neigh on unbearable to not have their day in court and to be left to wonder forever at every instance of what they might consider to be their child's odd behaviour. Lucy Letby is the main victim of the false allegations against her and her subsequent wrongful convictions, but she is far from the only one.

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The 19 undisclosed statements

Although there were 19 undisclosed statements (below) where intentional harm was invoked in relation to babies not on the indictment, there were a few other statements in the schedule mentioning inflicted harm. Two of these for reasons unclear were disclosed. In the case of eight statements the disclosure decision was unclear (three of these pertained to a baby not listed below with the initials "NNN"). Intriguingly, statements pertaining to babies "NNN", "LLL", and "MMM" invoked exogenous insulin:

"NNN": "The most probable cause for "NNN"s hypoglycaemia was exogenous administration of insulin." (Bohin)

"LLL": "Dr Bohin adds that the very high insulin level and associated low C peptide level found in "LLL" is not in keeping with a diagnosis of endogenous hyperinsulinism and most likely indicates that insulin was administered to "LLL"."

"MMM": "Dr Bohin states that consideration needs to be given to the notion that the hypoglycaemia on XXXXX and XXXXX was the result of exogenous insulin administration rather than to Congenital Hyperinsulism."

These must surely cast further doubt on the two insulin cases that did make it onto the indictment and, as the first on which jurors reached guilty verdicts, were pivotal to all Letby's 15 convictions.

Below are the relevant parts of the MG6C in relation to the 19 statements. I will let them speak for themselves, though you might wonder as you read them what their impact would have been on the 13 sets of parents.

Also, what have they now been told? That the doctors were wrong? Or, more likely, that their babies do not reach the evidential threshold for charges to be brought?

Statement no.: 1

Statement code: S237W

Baby: "AAA" (1)

DoB: 2012

Decision: ND (Not Disclosable)

Description and Relevance: Statement of Dr Sandie BOHIN (Consultant Neonatologist), dated 09th November 2020. This statement is in relation to the care of "AAA", who was born at the Liverpool Women’s Hospital on XXXXXXX 2012 at 25+4 weeks gestation. Dr Bohin details what she has been sent to assist her review and her professional qualifications. Dr Bohin details the care of "AAA" and how they suffered a number of acute life threatening events during their care at the Hospital. Dr Bohin states that The concern in her opinion is around the events leading up to the chest drains apparently falling out during cares and the frequency with which that happened.. Dr Bohin is concerned about the event on XXXXXXX when despite being sedated and with a chest drain in situ a self extubation apparently occurred and this seems unlikely. Dr Bohin adds that a number of the acute life threatening events require further scrutiny, particularly around staff present when events occurred on 26th, 27th and 29th (two events). Dr Bohin cannot rule out from the information available if the chest drains were tampered with or if the drains fell out accidentally. The frequency over such a short period of time in her view is suspicious. Further Dr Bohin thinks it unlikely that this baby spontaneously self extubated as she was well sedated.

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No.: 2

Statement code: S33CC

Baby: "BBB" (2)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 30th January 2020. This Statement is in relation to the care of "BBB", who was born at the Countess Of Chester Hospital on XXXXXX 2014. Dr Evans details how he has viewed the Medical Records for "BBB". Dr Evans concludes that During "BBB"’s time in the neonatal unit there were 2 occasions where they sustained a significant deterioration. The first was on 8 June when "BBB" required resuscitation and ventilatory support. The second episode occurred on XXXXX where again "BBB" required resuscitation and ventilatory support. Dr Evans adds that he has significant concerns regarding his nursing care from around 24.00 hr on XXXXX until "BBB"’s collapse at around 06.15 hr the following morning. Taken in isolation, and without any knowledge of other cases that form part of Operation Hummingbird, "BBB"’s nursing care during late XX and early XX XXXX was negligent. "BBB"’s nurse failed to document whether stomach aspiration had been carried out. She may have failed to carry out stomach aspiration pre the feeds between 24.00 hr on XXXX and 05.00 hr the following day. Dr Evans says that given his involvement with Operation Hummingbird, he believes that one needs to consider very seriously the possibility that "BBB" was the victim of intentional inappropriate nursing care between 24.00 hrs on XXXXXX and 05.00 hrs the following day, and that this took the form of receiving an excessive volume of liquid (milk) and air into their stomach.

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No.: 3

Statement code: S237BR

Baby: "CCC" (3)

DoB: 2014

Decision: ND (Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 22nd May 2021. This Statement is in relation to the Care of "CCC", who was born at the Countess Of Chester Hospital on XXXXX 2014. Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (Statement S33CR), (Phase 3 – S-3-47), Dr Bohin states that "CCC" was born around 9 weeks early. "CCC"’s mother had been given antenatal steroids in an attempt to prevent Respiratory Distress Syndrome( RDS). Dr Bohin adds that The pattern of events that followed is concerning. "CCC" had Acute Life-Threatening Events coinciding with the nursing night shifts of 20.00-08.00 hrs. on 08th & 09th, 09th &10th and 10th &11th XXXXX. "CCC" had no similar events during the day shifts over the same time frame. Dr Bohin states that In her opinion these events were the result of someone deliberately interfering with the airway, either obstructing the airway or tampering with the ET tube. She disagrees with Dr Evans that All of the events were due to ET tube displacement. Some were, but not all. It is her view that some events were due to deliberate airway obstruction.

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No.: 4

Statement code: S237BN

Baby: "DDD" (4)

DoB: 2014

Decision: ND (Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 14th April 2021. This Statement is in relation to the Care of "DDD", who was born by LSCS at the Countess Of Chester Hospital on XXXXX 2014. Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (Statement S33BU), (Phase 5 – S-5-21). Dr Bohin states that she agrees with Dr Evans that "DDD"’s initial clinical management was appropriate. That the collapse of the XXXXX was not due to infection. That the collapse of the XXXX was unexpected and unexplained and could be the result of deliberate tampering with the ET tube. That the collapse at 23.30hrs on XXXX was unexplained and that the collapse at 02.55 on XXXXX was due to the displacement of the ET tube. This could be the result of a deliberate act. Dr Bohin does not agree with Dr Evans that The abdominal distention is necessarily secondary to deliberate introduction of air via the nasogastric tube. This is certainly one possibility but "DDD" was on respiratory support which commonly causes abdominal distention and was also bagged for lengthy periods, something that also causes abdominal distention and that over vigorous aggressive oral and/or ET tube suction can cause apnoea, bradycardia and desaturation in premature infants. Although not documented it could explain the collapse at 23.30 on XXXXX.

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No.: 5

Statement code: S33BU

Baby: "DDD" (4)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 02nd February 2020. This Statement is in relation to the care of "DDD", who was born at the Countess Of Chester Hospital on 2014. Dr Evans details how he has viewed the Medical Records for "DDD". Dr Evans states how There was a marked deterioration in "DDD"’s condition during the night of XXXXX and the night of XXXXX. On the latter occasion, there is compelling evidence noting that "DDD"’s endotracheal tube was displaced, i.e, was not situated within his trachea. Dr Evans states that given the information he has seen in infants born later than this date, and whose reports he had prepared prior to receiving any information regarding any named suspects, that he believes that we need to consider that this endotracheal tube displacement was intentional. Dr Evans also believes that we also need to consider that "DDD"’s gastro-intestinal system was infused with a considerable amount of air, most likely during their nasogastric feeding, and that this caused their abdominal distension and the presence of distended bowel loops, as noted on the abdominal x-rays of XXXX and XXXXXX. Given that all of this occurred during XXXX 2014, "DDD" may have been one of the first babies born at the Countess of Chester Hospital to suffer from intentional inappropriate nursing care.

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No.: 6

Statement code: S33CP

Baby: "DDD" (4)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 11th November 2020. This Statement is in relation to the care of "DDD", who was born at the Countess Of Chester Hospital on XXXX 2014, before being transferred to Liverpool Women’s Hospital. Dr Evans details how he has viewed the Medical Records from Liverpool Women’s Hospital, Dr Evans concludes that "DDD" was born at The Countess of Chester Hospital at XXXX hrs on XXXXX 2014. "DDD" was transferred to the Liverpool Women’s Hospital on XXXX because of concerns regarding their condition. "DDD" returned to the Countess Of Chester Hospital on XXXXX 2014. "DDD"’s condition deteriorated once more and they were transferred once more to the Liverpool Women’s Hospital. "DDD" remained there until they were enough to be discharged home. Dr Evans adds that In his Report dated 04th February 2020, He raised concerns regarding the care that "DDD" received at the Countess Of Chester Hospital at or around XXX hrs on XXXX as "DDD"’s condition appeared to have deteriorated unexpectedly. Dr Evans also noted a similar unexpected deterioration in "DDD"’s condition during the night of XXX and the night of XXX XXXXX 2014. Dr Evans was concerned that "DDD"’s deterioration was not due solely to one or more of the clinical complications found in pre-term babies. There may have been some tampering with "DDD"’s airways but the need for prolonged ventilatory support indicates that "DDD" had a significant and serious respiratory condition. Dr Evans adds that In the context of Operation Hummingbird, and noting the identity of the individual nurse responsible for "DDD"’s care during those two evenings, He believes that we need consider that "DDD"’s airway was displaced intentionally, where the perpetrator would know that displacing the airway of a pre term infant would place them in harm’s way. It could have led to "DDD" sustaining life changing injuries due to hypoxia and could have led to their death.

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No.: 7

Statement code: S33DH

Baby: "EEE" (5)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 30th March 2021. This Statement is in relation to the care of "EEE", who was born at the Countess of Chester Hospital on XXXX 2014 and is a peer review of a report completed by Dr Sandie Bohin, dated 09th September 2020, (Statement S237Q), (Phase 5 – S-5-45). Dr Evans agrees with Dr Bohin and states that At two minutes of age the medical staff arrived. "EEE" was blue, had no respiratory effort, and heart rate was 60 beats per minute [3.5]. Heart rate increased to over 100 by eight minutes. "EEE" was transferred to Arrowe Park Hospital on XXXX 2014. "EEE" remained there until XXXXX 2014 when they were transferred back to the Countess Of Chester Hospital. Dr Evans states that In relation to this case, he shares the concerns expressed by Dr Bohin regarding "EEE"’s unexpected deterioration on XXXX 2014. He also adds that "EEE"’s deterioration on XXXX 2014 also appears to be rather sudden. Dr Evans adds that he believes that one needs to consider seriously that "EEE"'s deterioration, especially on XXXX, was not the result of any natural cause. It could have been subject to some form of inflicted injury, most likely in the form of obstruction of their airways. Dr Evans says that "EEE"’s deterioration on XXXXX was unexpected and he believes that we need to seriously consider that "EEE"’s deterioration was the result of some form of deliberate act, which could be the result of some form of obstruction of his airways, and where the perpetrator would have done so in the knowledge that it would have placed "EEE" in harm’s way. Dr Evans does not believe that one can rule out a similar scenario on XXXXX 2014.

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No.: 8

Statement code: S237BS

Baby's initials: "FFF" (6)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 15nd May 2021. This Statement is in relation to the Care of "FFF", who was born at the Countess Of Chester Hospital on XXXXX 2014. Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (Statement S33CI), (Phase 5 – S-5-29). Dr Bohin states that "FFF"’s airway must have been obstructed by some other means, including the deliberate obstruction of "FFF"’s airway. There is no other physiological mechanism for his precipitous decline and rapid recovery in her view. Dr Bohin agrees with Dr Evans that "FFF"’s sudden deterioration was not caused by a mucous plug, malpositioning, a pneumothorax, pneumonia or infection. "FFF"’s sudden deterioration was caused by airway obstruction/occlusion and that this may have been a deliberate act.

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No.: 9

Statement code: S33CI

Baby: "FFF" (6)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 17th March 2020. This Statement is in relation to the care of "FFF", who was born at the Countess Of Chester Hospital on XXXX 2014. Dr Evans details how he has viewed the Medical Records for "FFF". Dr Evans concludes that within the context of this case being part of Operation Hummingbird, He believes that "FFF"’s unexpected collapse was not due to any of the recognised complications that affect small babies requiring minimal respiratory assistance. He believes that we need to consider seriously that "FFF"’s airways were obstructed. "FFF" was suffocated. This would have caused "FFF"’s sudden deterioration, as recorded. Once "FFF"’s airway obstruction was removed, i.e. they were promptly resuscitated, "FFF"’s condition stabilised quickly. If the cause of their collapse had been some kind of infection or other respiratory problem their recovery would have been more gradual. "FFF"’s unexpected collapse at XXX hrs on XXXX cannot be explained on the basis of any recognisable lung or systemic pathology. It is most likely that their collapse was due to tampering of their airways; "FFF"’s breathing was obstructed. It is also Dr Evans opinion that this was done with intent, and where the perpetrator would know that such obstruction would have placed "FFF" in harm’s way.

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No.: 10

Statement code: S237S

Baby: "GGG" (7)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 25th September 2020. This statement is in relation to the care of "GGG", who was born on XXXX 2014, at the Royal Albert Infirmary, Wigan. Dr Bohin details what she has been sent to assist her review and her professional qualifications. Dr Bohin states that "GGG" was born at 28+X weeks gestation and a single dose of antenatal steroid was given. "GGG" was growth restricted with a birth weight of 855g "GGG" was transferred to Bolton Hospital, back to Wigan and then on to Alder Hey Hospital for laparotomy surgery. "GGG" was found to have a sealed caecal perforation, therefore had a right hemicolectomy and had an ileostomy and a defunctioning colostomy fashioned, along with a Broviac line insertion. Dr Bohin concludes that "GGG" was a small premature infant. "GGG"’s clinical care was provided at 4 hospitals from the time of their birth to discharge. Dr Bohin expresses her concerns in relation to a sudden dislodgement of the ET tube on XXXX.

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No.: 11

Statement code: S237P

Baby: "HHH" (8)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Statement of Dr Sandie BOHIN (Consultant Neonatologist), dated 09th June 2020. This statement is in relation to the care of "HHH" who was born at Queens Medical Centre, Nottingham on XXX 2014, before being transferred to North Staffordshire Hospital and Liverpool Women's Hospital. Dr Bohin details what she has been sent to assist her review and her professional qualifications. Dr Bohin states that "HHH" had a significant ‘collapse’ on XXXX 2015 when their ET tube became dislodged leading to a major resuscitation self extubation would be a rare and surprising event in a baby so heavily sedated and gravely ill as they move so little. Further, if this had occurred in conjunction with some kind of nursing intervention, e.g. suction of the ET tube, the nurse concerned would have known about it immediately, Dr Bohin says in her opinion self extubation is highly unlikely and there is therefore a real possibility that "HHH"’s ET tube was dislodged by a member of staff.

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No.: 12

Statement code: S33DC

Baby: "HHH" (8)

DoB: 2014

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Witness Statement of Dr Dewi Evans (Consultant Paeditrician), dated 30th March 2012. This Statement is in relation to the care of "HHH", who was born at the Queens Medical Centre, Nottingham, on XXXX 2014 before being transferred to North Staffordshire Hospital and Liverpool Women’s Hospital and is peer review of a report completed by Dr Sandie Bohin, dated 19th August 2020, (Statement S237P), (Phase 5 – S-5-71). Dr Evans agrees with Dr Bohin and states that sudden deterioration at around XX hrs on XXXX 2015 occurred as a result of endotracheal tube displacement. Whilst not being able to fully exclude the possibility that this could have occurred as a result of some kind of accidental cause, the fact that the little baby was inactive and was not subject to any kind of procedure at the time makes this less likely. Dr Evans also notes that "HHH" was managed in a neonatal tertiary unit, where the level of skill and expertise and experience of the nursing and medical staff would be expected to be of the highest order.

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No.: 13

Statement code: S237BD

Baby: "III" (9)

DoB: 2015

Decision: ND (Not Disclosable)

Description and Relevance: Statement of Dr Sandie BOHIN (Consultant Neonatologist), dated 08th March 2021. This statement is in relation to the care of "III", was born at the Countess Of Chester Hospital at 28+X weeks gestation at XX hrs on XXXX 2015 weighing 13XXg. Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (S3CH), (Phase 3 – S-3-44). Dr Bohin agrees with Dr Evans that events of XX/XX XXX were unexpected and are indicative of interference with the ET tube.. She agrees that the hyponatraemia and copious clear watery secretions cannot be explained in physiological terms and are consistent with the administration of excessive amounts of fluid. Dr Bohin confirms that the collapse on XX is very concerning and is consistent with inappropriate administration of milk or other fluid via the NGT. Dr Bohin finishes by saying that whilst she agrees with Dr Evans that the cardiorespiratory arrest was caused by interference with the ET tube she does not necessarily agree that "III" was smothered or suffocated.

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No.: 14

Statement code: S237BD

Baby: "JJJ" (10)

DoB: 2015

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 31st May 2021. This Statement is in relation to the Care of "JJJ", who was born at the Countess Of Chester Hospital on 2015, before being transferred to Liverpool Women’s Hospital. Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (Statement S33CD), (Phase 4 – S-4-6). Dr Bohin agrees with Dr Evans findings that "JJJ"’s deterioration on XXXX was secondary to infection. The deterioration on XXXX were secondary to the complications of infection. The deterioration on XXXX was not due to infection. Dr Bohin does not agree with Dr Evans that:the events on XXXX were associated with "JJJ"’s subsequent feeding problems or laryngomalacia.. Dr Bohin has an alternative causation for the deterioration on XXXXX, which she believes is secondary to a deliberate attempt to obstruct/tamper with "JJJ"’s airway. The sudden onset of swelling and mottling of the leg and associated collapses on XXXX, which Dr Bohin believes is due to the deliberate infusion of air and fluid into the peripheral intravenous cannula in the foot.

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No.: 15

Statement code: S237BC

Baby: "KKK" (11)

DoB: 2015

Decision: CND (Clearly Not Disclosable)

Description and Relevance: Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 09th February 2021. This Statement is in relation to the Care of "KKK", who was born by normal delivery, at the Countess Of Chester Hospital on XXXXX 2015, Dr Bohin details what she has been sent to assist her review and her professional qualifications. She explains how she has been asked to peer review the work and statements submitted by Dr Evans (Statement S33CG), (Phase 3 – S-3-43). Dr Bohin provided the following opinion and comments, "KKK" was a premature baby who had several concerning events whilst on the neonatal unit. Some of these were unexpected and cannot be explained by his clinical condition, Dr Bohin agrees with Dr Evans that The clinical deterioration suffered by "KKK" on XXXXX was secondary to an infection and was investigated and managed appropriately. "KKK" also suffered two acute life-threatening events X hours apart on XX/XX XXXXX which were both due to acute airway obstruction. Dr Bohin clarifies that although Dr Evans had concerns about the loss of the cannula on the night of XX/XX XXXXX and was of the opinion that it may have been lost as a result of nursing mismanagement, her own opinion is that the cannula was deliberately removed.

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No.: 16

Statement code: S237AQ

Baby: "LLL" (12)

DoB: 2015

Decision: ND (Not Disclosable)

Description and Relevance: Statement of Dr Sandie BOHIN (Consultant Neonatologist), dated 14th February 2021. This statement is in relation to the care of "LLL" who was born at the Countess of Chester Hospital XXX on XXXX 2015 weighing 4XXXg. Dr Bohin details what she has been sent to assist her review and her professional qualification. She explains how she has been asked to peer review the work and statements submitted by Dr Evans.(S33BS), (Phase 4 – S-4- 4) and (S33CQ), (Phase 3 – S-3-46). Dr Bohin provided the following opinion and comments, She states that a diagnosis of congenital hyperinsulinism was made and on the advice of Alder Hey. Diazoxide with Chlorthiazide was recommended at XXX on XXXXX. Dr Bohin states that "LLL" went on to have problems with both hypoglycaemia and seizures. The clinical team at the Countess Of Chester Hospital appear to believe that the seizures were secondary to hypoglycaemia, but like Dr Evans she disagrees with this. Although hypoglycaemia can cause seizures she doesn’t think that they were the cause in this case. In her opinion the two cyanotic episodes that occurred on the post natal ward were in all probability seizures and that the seizures were not caused by hypoglycaemia. Dr Bohin adds that the very high insulin level and associated low C peptide level found in "LLL" is not in keeping with a diagnosis of endogenous hyperinsulinism and most likely indicates that insulin was administered to "LLL". "LLL" suffered with HIE and that this was the cause of his seizures. There is no clear evidence of HIE and Dr Bohin believes that "LLL"’s seizures are unexplained.

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No.: 17

Statement code: S237CP

Baby: "LLL" (12)

DoB: 2015

Decision: ND (Not Disclosable)

Description and Relevance: Witness Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 02nd August 2021. This Statement is in addition to a previous Statement, made in relation to "LLL" dated 14th February 2021. Dr Bohin states that at that time that she had not seen the Medical Notes from Alder Hey Hospital or "LLL"'s mum’s records from the Countess Of Chester Hospital. Dr Bohin details what she has been sent to assist her review. Dr Bohin comments on "LLL"'s care and his mother’s conditions during labour.Dr Bohin concludes that In her original report, she questioned the underlying cause for the seizures. These were thought by a number of clinicians to be secondary to hypoglycaemia, which Dr Bohin still disagrees with. Perinatal asphyxia can now be excluded, Dr Bohin states that a comment in the neonatal notes stated that there were frequent antenatal foetal hiccoughs. This can be a normal phenomenon but can also be related to in-utero seizure activity.There is however no mention of hiccoughs anywhere in the antenatal notes. This is unusual especially in an IVF pregnancy where anxieties are generally high and every symptom scrutinized. On balance Dr Bohin thinks even if there were hiccoughs they were not a contributary factor in this case. Dr Bohin adds that It is her opinion that there is no evidence that perinatal asphyxia (or HIE) was the underlying cause for seizures in "LLL". The cause of the seizures remains unresolved. Her original report called into question the diagnosis of Congenital Hyperinsulinism (CHI). Now having had a chance to review the Alder Hey notes, her view has not changed. Dr Bohin does not believe that the endocrinologists scrutinized the history well enough before making the diagnosis. They took the original story and timeline at face value, even though much of it didn’t fit.

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No.: 18

Statement code: S317V

Baby: "LLL" (12)

DoB: 2015

Decision: ND (Not Disclosable)

Description and Relevance: Witness Statement of Dr Owen Arthurs (Consultant Paediatric Radiologist), dated 10th May 2021. This Statement contains a Radiology Report in relation to "LLL". Dr Arthurs details the material that he has been sent to review in order to compile his report, including Statements from Dr Evans and Dr Bohin. Dr Arthurs concludes that neither radiograph shows a lung or heart abnormality. The bowel gas pattern is normal. The second radiograph shows a right arm peripheral long line with its tip in the axilla which requires advancing. Dr Arthurs adds that Dr Evans’ reports describe that, in his opinion, "LLL"'s hypoglycaemia may not be a congenital abnormality and may be attributed to deliberate insulin administration. Dr Bohin’s report of 14th February 2021 agrees that, in her opinion, his hypoglycaemia is unlikely congenital and may be attributed to exogenous administration of insulin. She states that the seizures remain unexplained. Dr Arthurs states that there are no radiographic features that would support or refute this hypothesis. Serum glucose and insulin levels are not assessed radiographically and have no expected imaging correlates. Dr Arthurs is unable to agree or disagree with this opinion on the basis of the radiographs reviewed.

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No.: 19

Statement code: S237CO

Baby: "MMM" (13)

DoB: 2016

Decision: ND (Not Disclosable)

Description and Relevance: Witness Statement of Dr Sandie Bohin (Consultant Neonatologist), dated 04th August 2021. This Statement is in addition to a previous Statement supplied as part of a peer review of "MMM", dated 09th February 2021. Dr Bohin states at that time that she had not seen the Medical Notes from either Alder Hey Hospital, or Liverpool Women’s Hospital. Dr Bohin details what she has been sent to assist her review. She describes that the issues that require further comment are all related to Hypoglycaemia and Congenital Hyperinsulism. Dr Bohin comments on "MMM"'s care and concludes that "MMM" suffered an air embolus on XX/XX XXXX. She is unable to confirm if this was accidental or deliberate. The ET tube was more likely to have been dislodged that blocked on XX XXXX. Dr Bohin is unable to confirm if this was accidental or deliberate. Dr Bohin states that consideration needs to be given to the notion that the hypoglycaemia on XX XXXX and XX XXXX was the result of exogenous insulin administration rather than to Congenital Hyperinsulism. The abdominal distention of XX XXXX was not secondary to a known pathological process and settled very quickly. The appearances are compatible with the deliberate administration of air into the Nasogastric Tube. Dr Bohin also recommends that the diagnosis of Chronic Hyperinsulism be reviewed by an expert in paediatric endocrinology/metabolic medicine.

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Efforts by Letby's defence to seek disclosure

Although defence teams (obviously!) are not given material marked ND or CND, they are given the MG6C schedules. They thus are able to see the description of each item which allows them to appeal CPS decisions to the trial judge. This is exactly what Letby's lead counsel Ben Myers did on 31 January 2023.

Myers began by referring to the roster chart and how there were two ways it could be regarded:

One may be that, having selected particular events and looked at them, it turns out that Ms Letby was present on each occasion. An alternative would be that Ms Letby was in effect the parameter for selection of cases and inevitably, therefore, those cases which have been found to be worthy of further consideration are automatically associated with her.

He went on to say,

So what the defence have been concerned by, and what lies behind requests in disclosure request 4 and this item that's carried through into this section 8 application, is a way of assessing the extent to which the mere fact that Ms Letby was present has in effect become a search term and a parameter for bringing a prosecution or bringing the allegation, I should say. There's no nuance to that. Our concern is that it's the presence of Ms Letby itself that has made the difference to that. And if that is right then aspects of the table which we've just gone to, and that aspect of the prosecution case, may reflect as much the way in which the matter was investigated and the search term as what would follow necessarily from the events that took place.

We recognise that where deaths took place, she is present, as set out there. The real issue this goes to is where the question of collapses is considered because, we would observe, what is an inexplicable collapse or a suspicious collapse is plainly far more nuanced than the question of a fatality. 

Therefore to consider that and to consider therefore whether the investigation was conducted with appropriate breadth in that area -- and we make reference to paragraph 3.5 of the CPIA code, which we're grateful to the prosecution for including in their bundle of documents which were received yesterday. For your Lordship's reference it's at page 4 of that bundle. 

It's at page 4 of the prosecution bundle and I'll just read the relevant paragraph of the code of practice out for your Lordship and for the court. It deals with the section under the code for general responsibilities and paragraph 3.5 says:

"In conducting an investigation the investigator should pursue all reasonable lines of inquiry whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. It is a matter for the investigator, with the assistance of the prosecutor if required, to decide what constitutes a reasonable line of inquiry in each case." 

Therefore what the defence sought to determine is the extent to which Ms Letby was a focus of selection of cases. Having been concerned as to that, and having considered the material disclosed in the relevant schedules, we come to what we have in paragraph 6.

I can hand to your Lordship -- in fact, we considered it would be helpful to have the two documents we refer to there. I'll explain this and then put it into context with a paragraph. 

I'll return to the submission that we make in a moment, but just to acquaint your Lordship with these two items from the schedules. And we can send these electronically as well if it assists.

The first of the items, and it's in our paragraph 6, is schedule (inaudible: coughing) (9)(d)(3)...

...Your Lordship will see from the item of unused material there, D2915, that it makes reference to a case review flow chart and a name of a child whose initials are JE, not one of the children on the indictment. 

But the chart is used to assist in establishing whether the collapses JE experienced whilst at the Countess of Chester met with, and it says, "the investigative threshold". It goes on to say:

"The flow chart indicates the investigation should take place as it achieved a matrix score of 30. JE was in the COCH NNU [the Countess of Chester neonatal unit] during the period when the following neonates encountered a significant event on the highlighted times and dates."

And it sets out there the names of children who are on this indictment.

A matter of concern to the defence was the reference to the case review flow chart and the investigative threshold and the matrix score.

In a similar vein, under a different schedule, and it's the attached sheet, the second entry down is document 9.2. It says D2919. This document is a case review flow chart for a child with the initials NM:

"Expert review indicates that there was harm. Matrix score of 55 indicates there will be a peer review and investigation."

That will come as no surprise to your Lordship: there is a substantial body of unused material in this case. On behalf of the defence, where we have raised enquiries, we have been as focused as we can be. This only relates to two matters after a lot of consideration and assistance from the prosecution. 

Returning therefore to the written submission we have, perhaps it will make easier sense now in sub-paragraph 6 where we have talked about where the document refers to the investigative threshold and how the flow chart indicates the investigation should take place, and then a further reference to the case review flow chart and your Lordship sees where those come from now. 

So it's with regard to that that the defence have made the enquiries that we do make in (i) to (vii) after that because we seek to know the extent to which Ms Letby is herself a factor in this scoring and the weight given to that to better be able to determine the extent to which some of these allegations merely reflect her presence and that that has made all the difference rather than the strength of the medical evidence as such. 

We're grateful for the prosecution for going through all these matters in the detail they have, but as to that one, in their response they make it plain or they say there is nothing to disclose. We question that because if it's the case that the difference in a matter becoming an allegation or not lies in the identity of Ms Letby rather than the sheer strength of the medical evidence, that is something, we submit, that is capable of assisting the defendant or potentially undermining the prosecution case on that count. 

It may be that if there is a document or a matrix or some written criteria, it might even be something your Lordship should see before any final determination is made as to this. But that is the thrust if the submission that we make now, having had the benefit of the exchange of documents and further discussions. 

I should add, on the final page of our application your Lordship will see sub-paragraph (vii). If your Lordship would kindly turn to page 4 of our application. 

We set out there, at the four numerals under sub-paragraph (vii), the request that was in the original disclosure request at paragraph 17 and there were a series of enquiries, which in a way to a large extent have been answered to us in one form or another now, for which we are grateful. 

7(ii), which is: 

"Confirmation of whether any of these cases do not involve Lucy Letby being present on the unit at the time of an event of interest (this means cases that have been reviewed)." 

That is a matter to which we would still seek an answer if the court considers we're entitled to it, a straight answer to that, whether or not her presence as a person of interest is the factor. 

It's right on the point of what lies behind our request under paragraph 6. But my Lord, that is the extent of this application. 

Following some back and forth with judge Goss, Myers then says,

Your Lordship is quite right: we need to know how many cases were reviewed and, of those cases, how many did not involve Lucy Letby if we can be provided with that information. 

To summarise, Myers is making two requests in his submission, based on undisclosed Case Review Flow Charts in respect of two children not on the indictment:

1) To see the matrix criteria in order to determine the extent to which Letby's presence was one of them, and

2) To know, with respect to the incidents appraised, how many Letby was not present for.

After Myers' submissions came those from lead prosecuting barrister Nick Johnson's with respect to Myers' two requests:

1) Matrix criteria

MR JOHNSON: Can I make it entirely clear: this matrix has not been applied to this case.

MR MYERS: Well, I follow that. I suppose if it is of no part in this case, there's little that we can point to where the matrix can have played a part in determining what's on this indictment...

MR JUSTICE GOSS: In which case, arguably, it shouldn't be on the disclosure schedule at all.

MR JOHNSON: I agree.

2) The number of appraised incidents at which Letby not present

MR MYERS: The only matter that remains, insofar as the court sees merit in it, is the point we raised under paragraph 7, which is the extent to which, given the total number of cases, Ms Letby is not present in any of those. If there is material that can be provided setting that out, we would wish to see it because then at least we can gauge the extent to which this investigation has looked beyond just her identity. That's the only matter we are left with in the light of how things have developed here.

MR JUSTICE GOSS: All right. Mr Johnson has said, if I've understood him correctly, that there is no relevant material to disclose in relation to that aspect.

MR JOHNSON: Correct.

MR JUSTICE GOSS: All right. So there we are.

I'm not a lawyer but I would imagine that Nick Johnson must be wondering whether what he said to the judge was correct, namely:

a) The matrix was not used with respect to the indictment cases, and

b) There was no material indicating whether Letby was or was not present at other incidents appraised

I'm not a betting man, but if I was.....

Goss finishes by saying, "I will provide a short written judgment in relation to this, but I am not proposing to make any order in response to your application, Mr Myers."

It is worth reading Goss' written judgment:

RULING ON THE DEFENCE APPLICATION UNDER S. 8 OF THE CRIMINAL PROCEDURE & INVESTIGATIONS ACT 1996

1. By an application dated 25th January pursuant to s. 8 of the Criminal Procedure and Investigations Act 1996 (‘CPIA’) the defence have applied for disclosure of material in the possession of the prosecution. Following productive discussions and co-operation between the prosecution and defence, the original application has been narrowed down to two discrete but linked issues. At the conclusion of the hearing I indicated that would not make any order for disclosure. These are the reasons for my ruling.

2. The application is confined to the matters raised in Paragraph 5 6) and 5 7) of the written application. In summary, the defence seek disclosure relating to

a. Item D2915 (at URN D-9D-3) which is a “Case Review Flow Chart” which was

used to assist in establishing whether the collapse of a child not the subject of

this prosecution who was at the Countess of Chester Hospital at the time of

significant events occurred relating to 6 other children who are now the subject

of counts on the Indictment met with the investigative threshold, and

b. Item D2919 (at URN D-9-2) which is a Case Review flow chart for a child not

the subject of this prosecution in which “expert review indicates there was harm.

Matrix score of 55 indicates that there will be a peer review and investigation.”

3. The foundation of the application is the defence concern as to the extent to which the

defendant is a focus of blame by virtue of being Louise Letby rather than by virtue of

evidence outside that fact pointing to the commission of an offence or, more particularly, the commission of an offence by her. Put another way, it is a concern as to the extent to which that the defendant was a focus of blame and became a search term in relation to the investigation or a parameter. Reference was made to the table at CH16 (page J242 of the exhibits), which identifies the defendant as being present, and the only person present by some considerable degree, on all the occasions set out in the table which set out the collapses that are reflected in the counts on the Indictment. The application is, they argue, a way of assessing the extent to which the mere fact that Ms Letby was present has, in effect, become a search term and a parameter for bringing a prosecution or making the allegation. Their particular concern is that it is the presence of the defendant itself in the cases of the unexplained non-fatal collapses that has made the difference to that and aspects of that table, and the prosecution case may reflect as much the way in which the matter was investigated and the search term as what would follow necessarily from the events that took place. They question the extent to which the prosecution were conducting their enquiry into these events with sufficient breadth and pursuing reasonable lines of enquiry as required by Paragraph 3-5 of the CPIA Code of Practice that

“The Prosecutor should pursue all reasonable lines of enquiry whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. It will for the investigator… to decide what constitutes a reasonable line of enquiry in each case.”

Mr Myers KC confirmed that, although the defence have the information as to how many cases were reviewed, they want to know how many of those cases did not involve

the defendant.

4. The prosecution response is that the case review flow chart or the matrix was a tool that was introduced as part of the review after the defendant had been identified by the

inquiry as the perpetrator for the offences on which she is being tried. In other words,

it was not used in the course of this case and is irrelevant. Whilst the information

sought, or the basis for further police inquiries into the defendant may be of great

interest to the defendant herself, they are irrelevant to the issues in this case. So there

is no material to disclose, there being no material that “might reasonably be considered

capable of undermining the case for the prosecution against the accused or of assisting the case for the accused … that has not been disclosed to the accused” (CPIA s. 7A).

Inevitably, the investigators were looking at cases where the defendant was there, but

that has nothing to do with disclosure; Mr Johnson KC confirmed unequivocally that

the matrix has not been applied to this case.

5. In these circumstances, there is no reason to doubt the prosecution’s response to this application that the material requested is not disclosable under the CPIA. A good deal of material potentially relevant to the fulfilment of prosecution’s disclosure obligations has been disclosed.

6. For these reasons the application is refused. I shall, of course, keep well in mind the

issue of any disclosure for the duration of the trial.

The Hon Mr Justice Goss

31st January 2023

It seems wrong to this non-lawyer that Letby's defence was denied access to material that might have helped them. However, it is possible that the ruling by Goss cannot be a ground for appeal because, in the context of what he was told by Johnson, it was correct. I would be interested in a lawyer's opinion on this.

Indeed, there are other matters in relation to the above where a legal opinion would be of interest, specifically the question of why Myers sought disclosure in relation to two items only. It is not clear why he did not seek disclosure of the 19 statements listed above, though a clue is provided in his oral submission:

"...there is a substantial body of unused material in this case. On behalf of the defence, where we have raised enquiries, we have been as focused as we can be. This only relates to two matters after a lot of consideration and assistance from the prosecution."

It would be very interesting to know precisely what the "assistance from the prosecution" involved.

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Appendix 1

It has been known for a while that the roster chart was a flawed construct. With respect to a number of the 24 suspicious incidents in the chart, Letby was not in fact present. Or, rather, the prosecution had to invoke some farfetched theories to make the chart fit their "facts". Examples include:

Baby C: initially, the prosecution's evidence of inflicted harm was an X-ray taken on 12 June showing abdominal distension. However, it was later realised that Letby was not on duty on 12 June, nor had she been at any point since Baby C's birth three days earlier. So, the date was changed to the 13 June when Letby was on duty, the problem being (for the prosecution that is) there was no evidence of inflicted harm that day (when asked by Myers on the stand what the evidence of harm was, Dr Evans said, three time, "Baby collapsed, died").

Baby F: in order for Baby F's hypoglycaemia to have been caused by exogenous insulin, he would have to have received insulin via TPN bags hung on adjacent shifts. So, the prosecution came up with the theory that Letby spiked the exact bag that would be used on the following shift.

Baby O: In Evans' first Baby O statement, he wrote, "I also note the comment regarding the petechial discolouration over the right side of the chest (over the liver), noted by one of the doctors who conducted Baby O's resuscitation. This suggests that Baby O sustained some form of trauma which initially led to his increased heart rate and increased respiratory rate from around 01.30hr on 23 June, and which eventually led to a “tipping point” where the effects of the bleeding led to his collapse and subsequent death." The problem was that Letby was not on the 22/23 June night shift but on the 23 June day shift. Not to worry. In Evans' later statement he wrote, "I note the clinical events from the time that Baby O first showed signs suggesting that Baby O was first unwell. This is when the increased heart rate (tachycardia) and increased respiratory rate was observed from around 08.30 hr on 23 June."

Appendix 2

It has also been known for a while, thanks to Unherd Magazine's David Rose, that lead police medical investigator Dr Dewi Evans, having been given the case notes of 28 babies to appraise when he joined the investigation in July 2017, identified ten clinical incidents in relation to nine of the babies that he deemed suspicious or possibly suspicious but that did not end up on the indictment because Letby had not been present. He also did not deem as suspicious seven clinical incidents in relation to five babies (Babies G, H, I, K, and Q) that did end up on the indictment.

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