This is the Defence Closing speech given by Ben Myers KC over 5 days, between 26th and 30th June 2023. The text was taken from the official court transcript.
Note that the Menu & Subheadings were not part of the original document but have been provided to help navigate the speech.
Monday, 26 June 2023
(10.26 am)
(In the absence of the jury)
MR MYERS: My Lord, can I thank you for the directions which we received on Friday. There may be some minor points to raise, but nothing of any substance.
MR JUSTICE GOSS: Thank you, Mr Myers. I wasn't expecting any detailed response yet, but I just wanted you to be alert to the basic areas. Thank you, Mr Johnson and Mr Astbury, for the suggestions and the amended suggestions and the withdrawn suggestions. Thank you very much.
You choose your moment, Mr Myers.
MR MYERS: Thank you, my Lord.
(In the presence of the jury)
Closing Speech by MR MYERS
MR MYERS: Ladies and gentlemen, I've been sitting next to you for nearly 9 months and I hardly know you, but I can hazard a guess what a number of you will you thinking at the moment, and that will probably be, "5 days? 5 days!" I should say the other thing that's happened in the course of 9 months is I've moved from someone who doesn't wear spectacles to someone who does wear them, so these will make an appearance.
But before I start, can I thank you all on behalf of myself and Mr Maher and Ms Clancy and also Mr Thomas and Mr Learmont. We are grateful, as is everybody in court, not just us. Obviously everybody in court is grateful for the close attention that you have been paying to this case. It is a difficult case in many ways. It is distressing. There is a huge amount of material to deal with and I know that although talking at length can be demanding, listening takes even more stamina, so thank you.
I've listened very carefully to what the prosecution have had to say to you for the past 4 days and now this is our opportunity to speak to you on behalf of Ms Letby, and I hope, and I expect, that everybody in court will do me the courtesy and you the courtesy of sitting and listening to what I say on her behalf, just as respectfully as we have been doing.
What struck me as I've been listening to the prosecution, what really struck me, is that when we listen and look at the evidence in this case, whatever Ms Letby has done or hasn't done or said or not said, whatever it is according to the prosecution, that makes her guilty. Whatever it is. Just cast your minds back to everything, every single thing, as if the prosecution have a theory and no matter what happens, no matter what the evidence is or whatever the evidence isn't, the evidence or the absence of evidence is treated in whatever way is required to keep that theory going.
It doesn't matter how inconsistent that theory is or how the supposed patterns don't stack up. It doesn't matter in fact, it seems, how often that theory has to change shape. And it doesn't matter that different standards are applied to Ms Letby from the standards applied to everybody else in this trial. The theory is endlessly flexible and the patterns vary according to the point the prosecution want to make and everything — everything -- is treated as evidence of her guilt.
If I go through some of the things in this case, if I just quickly run through some of them, you will see what I mean. So Ms Letby is present when something happens: guilty. Ms Letby isn't there when something happens: guilty. She's just left the unit: guilty. She's just turned up for work: guilty. She makes a note: guilty. She doesn't make a note: guilty. She fails to sign off observations, just like other nurses fail to sign the observations -- well, yes, it happens, but when Lucy Letby is doing it, guilty. She signs observations on another nurse's chart, exactly like other nurses do -- well, yeah, that happens too, but in the case of Lucy Letby, guilty.
A baby in her care shows no sign of deterioration before an event. The prosecution say, that's easy, that's guilty. All right. A baby in her care does show signs of deterioration before an event, guilty too, say the prosecution, because she made those up and put them in her notes. She can't win.
Even if there are signs of deterioration, she invented them. Ah, the signs of deterioration are referred to in another nurse's notes, which you may think, that's good evidence of deterioration. No, guilty, the theory changes: she's got them to put that in there. Okay. The signs of deterioration are referred to in a different nurse's notes and they happened when Lucy Letby wasn't even on the unit. Yes? That's a tricky one, isn't it? But guilty because she somehow set it all up beforehand and you have seen that time after time, this twisting and turning.
She cries when she gives evidence: guilty. She doesn't cry or she doesn't cry in the right places: guilty. You've watched that for months. How about this? Dozens and dozens of alleged incidents of force-feeding, pushing air down tubes, injecting air down tubes, spiking insulin bags repeatedly on a busy ward in front of everybody, performing assaults with unidentified objects in a unit where anyone can walk into any room at any moment, and they do, and where for nearly 12 months Lucy Letby is under suspicion, we are told, by an ever-increasing number of doctors, and there is not one occasion where there is evidence of Ms Letby doing -- doing -- even one of the harmful acts alleged against her. Not guilty.
The prosecution keep on saying we should look at all the cases and we agree. When I say not guilty like that at that point, that's what we're doing. Or do we just ignore that glaring absence in the evidence because it doesn't fit with the prosecution theory of guilt? In 22 -- in fact, on about 30 occasions, given the number that were thrown in as we went through the defence case, and just about everything became an allegation if it gave the prosecution a shot at Lucy Letby.
There's been reference in this case to something called confirmation bias, but I think there is a better way of describing what is happening, and we can see it now the prosecution have put their case, and that is that what is really at work is best described as the presumption of guilt. That is what is being used, a presumption of guilt. And this prosecution case is fuelled by it and riddled by it.
No matter what Lucy Letby says, does or doesn't do, it is slotted into an ever-flexible, ever-changing theory of guilt. It doesn't matter how inconsistent that is or how many standards are applied to Ms Letby that are different from those applied to any other witness you've heard from. It can be slotted in there because everything is treated as evidence of guilt. Well, ladies and gentlemen, I'm going to ask you, if you would, to do something different and I'm going to ask you to approach this evidence, the evidence, with something else at the forefront of your minds, and that is something called the presumption of innocence. It comes like a bucket of cold water over everybody in at this point in this case, I bet. Yes? The presumption of innocence. And if you have been doing that for the past 9 months, if you have, and we put faith in you that you have done, good, because that's the way it works. Being fair and working on the basis that somebody is innocent until proven guilty is the way our law works, that is all we ask of you, that is all, that you make sure your consideration of the evidence is fair and balanced in accordance with his Lordship's directions and that the prosecution make you sure of what they have to prove.
Now, 5 days sounds quite a long time, quite a lot to listen to, so that you know where we're going, what I'm going to do and it will probably take most of today, maybe just into tomorrow, is just to look at matters in the case generally and then I will, with you, go through the individual counts on this indictment in order. So you may be listening to me, thinking these are all very good general points, the sort of thing we expect a defence barrister to be saying to us, but then I'm going to take this and we will go through the counts and look at it. So we'll look at the evidence.
I won't be referring to everything, but we recognise the enormity of what you are dealing with. There's a huge amount of material in this case. But you know the enormity of what Ms Letby is faced with and there is a lot to consider and we know it takes time to unpick all of this. We respect the fact of the evidence and we respect the task that faces you.
During this trial, while defending Ms Letby, and plainly that is what we're doing, there are two sides here so far as the parties are concerned, and neither side is neutral or automatically right. There are two sides.
Whilst defending Ms Letby during this trial we've also endeavoured to assist you by unravelling at times what has been a mass of information poured out, literally a spaghetti soup of dates and events sometimes as if, throw it all in, shake it all around, say some awful things, point to pieces of evidence, some of which you'll want to look at very closely, we recognise that, some of which we say carry little weight at all, but then see what comes out at the other end. And there is a danger, we suggest in a case like this, of an accumulation of material overwhelming fair consideration of the individual parts, not disputing the business of circumstantial evidence, of course you can look across the counts, but you must look at the detail too.
As you know from his Lordship's directions, the law is for his Lordship, and anything we do, anything I say, anything anybody says or does in this case is subject to his Lordship's directions on the law. But when it comes to the evidence, the facts, what happened, that is your territory, ladies and gentlemen, entirely yours. Questions, speeches by counsel, comments, they don't count if you disagree on what you see in the evidence.
So it doesn't matter, actually, what I say to you by way of comment on the evidence. If you don't agree with it, dismiss it. It's not up to me. And it doesn't matter what the prosecution say to you about the evidence, it doesn't matter at all if you disagree with it because it's your view that takes precedence. And as his Lordship directed you, whilst his Lordship will review the evidence with you, it isn't his views, were there to be any, it isn't his views, were you to perceive any that matter, it is your views of the evidence that matter. That is absolutely crucial.
So as you listen to what I say on behalf of Ms Letby and as you think of what the prosecution said, can I ask you -- it's your notes and your recollections of the evidence, you saw this for months on end, that is what matters most of all. All the rest of it from the parties is comment and we would both say it's important because it's both sides of the case. But you have listened, and it's obvious you have listened so carefully, you've absorbed so much, you've made so many notes, please don't disregard that, don't forget that. What your views were of a witness or of a part of the evidence when you heard it, that's what matters. Of course you'll put it alongside other bits of evidence, but it's not up to any of us to tell you what to think of the evidence when you go back to it or to pick one bit and ignore another bit if you find it elsewhere. That really is for you.
It follows, doesn't it, that no matter how anyone reacts as these submissions are made, that doesn't matter. Reactions to what I say to you don't matter from the parties, from in the well of the court. Guard your right to form your own view of the evidence on each count in accordance with his Lordship's directions and do so, we ask and we trust you will, fairly and with balance. That's all we ask. It's all we ask.
When it comes to forming a view of the evidence, may I observe this: attempts by the prosecution to draw Ms Letby into agreeing with them in cross-examination about things that she cannot be the final authority on and then presenting that to you as if the matter is beyond dispute does not shut out the issues in this case. I'll explain what I mean.
You saw the prosecution each time we went through the various counts with Ms Letby say things like, "Did staffing pressures contribute to this? Did sub-optimal care contribute to it? What do you say about this? What do you say about that?" Well, the effect of staffing pressures combined with taking too many babies with too high needs for this unit and the quality of medical care in any given case isn't something that she is the final judge of. In fact, you are. So a nice try, maybe, to shut it out by positioning the defendant into a place where she says, "I can't say", but you, as you were told repeatedly last week, have a benefit over anybody else here because you can look across all the evidence and draw your conclusions, sensible conclusions and common sense conclusions from the evidence that you've seen. That goes for the care, it goes for staffing pressures, it goes for insulin and analysis. She is in no position -- I don't mean to be rude when I say "she", but Ms Letby is in no position to settle these issues by her opinion. It's for you. And you may well have formed opinions on these things as you listened to the evidence. That's what matters.
Now, can I say before we go further that it is hard to imagine allegations that could be more upsetting and distressing than those that we are dealing with in this trial. And the evidence has been at times harrowing and heart-rending. Nobody, nobody, can fail to be moved emotionally by what we have been dealing with for the past 8 months. And you know, ladies and gentlemen, that nothing I say is meant to diminish the enormity of loss in this case for the parents in particular. We all know that, everybody does. It is obvious and it is painful and we don't lose sight of that for one moment and we haven't done during this case. So how any of us can fail to be upset or feel overwhelming sympathy for those who have suffered loss is unimaginable and we do, and the emotion and the sympathy that we feel is utterly natural. We are all the same, whatever we're wearing. We all feel the same things about what has happened.
When there has been loss, as there has been in this case, and allegations, as there are in this case, the desire to find blame and to seek retribution is also natural. It triggers it. It's how we work as humans. It's a very, very powerful desire to do that. So we have a process where we look for blame and may be more ready to accept it because of how we feel, because of wanting to have a way to show support to people who have lost people.
When that natural reaction, and it is natural for all of us, is pointed in the direction in which these allegations lie, that is likely to create a very powerful emotional reaction and an almost overwhelming desire to convict before we even get going on the evidence.
You will understand, ladies and gentlemen, we have to be very careful not to convert natural sympathy into a desire to convict or a readiness to accept things that are said about Ms Letby that may or may not be true or accurate. And when you step back and weigh it up in a case like this, that must be a massive danger, mustn't it, because it's so natural? So we have to guard against that urge, that sense of sympathy, and guard against settling for accusations that are not fully supported and coherent on the evidence, because when a case is as upsetting as a case like this, and there is such powerful emotion at work, you may agree we have to be more careful about drawing the conclusions we reach for someone in Ms Letby's position than less careful. We have to be very careful indeed.
Inevitably, the prosecution are critical of the defendant and they would be. That's their case. That's what they're doing. They characterise her before you, characterise her in a way that serves their case. You will judge all of this by the evidence, ladies and gentlemen. By the evidence.
The prosecution are entitled to characterise the defendant in accordance with their case if that's what they want to do, but ladies and gentlemen, we ask you to be alert to the way that's been done and alert to the dangers of that because there's been a lot of it, hasn't there? "Attacking." The use of this language, sometimes where there is no evidence. Let's face it, in that case there is no evidence at all, actually. One act, we'll come to it. But attacking, sabotaging, saying these things in questions as if somehow that's a done deal and I've said it, that's it, that's proved it.
"Gaslighting." I'll come back to that shortly.
"You're enjoying yourself." Was she? Easy to say that. Combine it with that emotion, fire it at her in front of you, affect you, influence you, turn you against her. If it turns you against her on the evidence, that's your prerogative. If it just affects you emotionally, that's not so fair.
"Your favourite way of killing children", "playing God", "manipulating", "calculating". Lots and language, deliberately chosen we say, for its effect upon you. You can probably see that. Maybe you were perfectly aware of that as it was taking place. That's what was going on, we say, sometimes on the thinnest evidence and, more often than not, those sort of things, we say, on no evidence at all. It's one thing for these things to be said, it's another thing for the evidence to be there to support them.
She's a 25-year-old band 5 nurse, an excellent one, but without being rude or complimentary or anything, that's what she was, looking after dozens, if not hundreds, of other babies over the period on this indictment, day after day. Not just the 17 we've spent 9 months looking at, but dozens, day after day, week after week. And she is, we say, not the person the prosecution are trying to create for the purpose of influencing your views.
Not a genius with an infallible, excellent memory. You saw the real person over the 5 weeks and 3 days that she spent coming in and out of that witness box and she was somebody who was ready to stand up for herself at some points and somebody who could remember pieces of evidence she knows from the years of waiting for this trial. It's not like there's a load else to do in prison, is it? But also somebody who is at times scared, anxious and struggling to hold it all together. And we say the prosecution portrayal of her is back to front. They have to make her into something she isn't to use the evidence in the way they do. And they have to do that to compensate for the fact that they don't actually have the evidence for what they need to prove. They have to make her into something she isn't for the evidence to work in the way they are trying to.
So you miss an entry. They all miss entries from time to time. They all do. You miss an entry because you're enjoying it, because you're manipulative, and that (inaudible) so that you then looking at that and think, oh right, yeah. Maybe you don't, we say please don't. The idea is you get these feelings, you have this characterisation, you're pointed at weak evidence, gaps in the evidence, and it does its job. Suddenly Lucy Letby doing something that other people do or not doing something that other people don't becomes very significant, time after time.
And there's a lot of comment like that in this case. We go to an entry where something has been misrecorded by Ms Letby, as it is by other nurses, or something wasn't entered, wasn't initialled. Jury bundle 2 is packed with papers like that. Plausible deniability. Sounds good. Just rattled out like it's a done deal. Plausible deniability. Setting up her cover when she refers to observations that you wouldn't question in the case of anybody else. You even heard the prosecution ask you a series of questions, just questions, and then actually say to you there's only one answer to this, Lucy Letby, as if that is the explanation.
You saw that, a whole load of questions and then you're told there's one answer to this, Lucy Letby. Oh right, that's it then, let's not bother with the evidence, let's get stirred up and convict on that basis.
There were times even when leading up to whatever was coming next, the prosecution would say, "And you know what I'm going to say next", and you may well have sat there thinking to yourselves, "Yeah, we do, you're going to say Lucy Letby because you say it every single time".
And on top of that, there is the way she was dealt with in cross-examination by the prosecution, which we'll look at, ladies and gentlemen, that we say that was bad. Bad.
These are terrible accusations and it is easy to be turned against the accused. So many things make it difficult for you to approach this with a presumption of innocence in mind. She's in prison. That's how it is, that's the system, that's not a criticism, that's no part of her defence, it's a fact. But just look at the way these things work upon us all. She's in prison, she's in the dock, surrounded by officers who have been commendable in their conduct with her, we say, and all do. None of this is critical of anyone caring for Ms Letby. Commendable.
These are standard measures in these circumstances, but just think about how that looks. And when I say that, think of the criticisms about her. You've constantly been told, "Put her evidence against the witnesses' evidence". The witnesses don't come with all of this negative atmosphere around them, the effect upon you like that, if you see what I mean. There is actually an inherent disadvantage, isn't there, sitting in there behind all that glass in the position Ms Letby's in before we even get to the evidence? That's evidence of nothing, that's just the way this works. That's where that 25-year-old woman smiling in those photos has been translated to in the last 7 years. Well, we have to get past the emotions, ladies and gentlemen, that are stirred up in that way and look at the evidence. That's what we ask you to do.
At the heart of this case, I'm going to suggest to you, being balanced in your assessment of the case, are, we, say two principal possibilities when it comes to considering what happened between June 2015 and June 2016.
There is the possibility that the deaths and collapses in this case happened as a result of the medical condition of babies being cared for at the Countess of Chester neonatal unit over that period and maybe combined, and we say almost definitely combined, with the condition of the unit over that period, staffing pressures, what we say is the undoubted clinical fragility of a number of these children, and failings in care on that unit. That's one possibility.
Then there is the possibility that a young woman, that young woman, who was a well-trained and apparently dedicated neonatal nurse, decided to kill children or try to kill them for reasons that are beyond comprehension, unidentified and make, we say, no sense on the basis of what we see. And to do so, it seems, out of the blue, the very year, as it happens, that the unit experienced a marked increase in the number of babies it was taking and the level of care required by those babies.
What a coincidence that at the point the unit began to take more babies than it could properly care for, we say, but we say that on the basis of the evidence and the conclusions you can draw, but what a coincidence that this apparently inexplicable behaviour should coincide with the very period that this hospital takes on too many babies with too high care requirements. And that is based, we say, on the evidence.
We know these are fragile babies, many of them were not particularly well. That's why they're on a neonatal unit. The succession of some people who have come here to try and persuade you they're doing brilliantly. The mind boggles. They're not doing brilliantly. That's why they're there. Some were on what's been described as the margins of survivability, the unit overstretched and understaffed. You have seen the evidence and we will go through this because we ask you to judge what I am saying to you on the basis of the evidence.
They were not properly able to care for some of these babies and there has been, and we'll look at this, sub-optimal care in babies on multiple occasions on this indictment, and there has been, and it's no good trying to brush that aside now because it doesn't fit with the ever-changing prosecution theory of guilt. That's on one hand.
On the other hand, we have a young woman who, on the evidence, was dedicated and highly trained, someone who raised the alarm for children who were unwell on multiple occasions. I'll come back to that as we go through this. It's not really been pointed out, has it? It speaks volumes maybe when you consider what you are meant to be sure of to convict in this case.
She wasn't on the unit at the times of the events we are looking at and it is that alone actually -- well, perhaps I should say it's that in particular which allows a presumption of guilt to flourish. There is other evidence that needs to be looked at. There are things you'll want to look at closely and things that call for an explanation. We know that. We know that. That's why it takes 5 days and not 5 minutes to speak to you about it. We respect the position you're in and we respect the fact of this process and we need to look at the evidence that there is.
But the standout point does have to be this, doesn't it? For all these occasions, for all the talk of coincidence, for all that's said, not once -- not once -- is there any evidence identifying what it is, as in the act or the acts, that are meant to be the harm being done.
That has to be a standout point because if we step back, and we haven't looked at this yet, we haven't looked at this. One of the reasons we haven't looked at this, by the way, is because this is the first opportunity the defence have to address you like this, ladies and gentlemen.
Pausing there, interrupting myself for a moment, you've had a huge speech from the prosecution at the beginning of this case, which sets up the way you look at it. An hour and a half from me identifying issues, but that's fairly minimal compared to what you've been told. We go through the evidence and then a speech, a lengthy speech, from the prosecution -- and it's bounding [sic] to lengthy, just as mine is.
But this is the first time we get to hear, really, the defence case set out, so think how long there's been for you to form a view before we ever actually set out what's said on behalf of Ms Letby.
It's extraordinary, isn't it, going back to the absence of evidence of this? It isn't a case you see where there are one, two or three allegations where someone could get lucky because, let's face it, that's the subtext answer to this: it's all a bit lucky, got lucky.
[Redacted].
Nor does the evidence from [Mother of Babies E & F] actually, when we get to it, and we'll look at it, include a count of any attack or attack in progress. They keep on saying "an attack in progress". Where? Where's the evidence of an attack in progress at that point? If we move on from that. As I was describing to you, it isn't a case with one, two or three allegations where someone must have got lucky and simply got away without being caught, there are 22 counts on this indictment and about 30 events by the time the prosecution have finished in their speech, over 12 months, at all times, and nothing, even though, as Dr Jayaram agreed in his evidence, from quite an early stage, according to him, it was all eyes on Letby. Some time soon after the death of [Baby D], we're told. All eyes on Letby. Right, all eyes on Letby, what did you see? Well, nothing.
Repeatedly spiking insulin bags. How do you do that, nipping back and forth during a busy morning, topping up the TPN with a syringe of insulin in front of everybody? It's easy to say these things to say these things, to change the theories, to keep them going, to throw ideas out to you. Easy to say it. Not once is she identified to say one of the things that underlie what is now alleged.
We are well aware, as you've been directed, of the significance of what's called circumstantial evidence, putting things together when there isn't direct evidence so you can draw conclusions. A bit like, we say, what applies to sub-optimal case in this case: you can draw conclusions on that as circumstantial evidence. But of course you can use circumstance of evidence, but 30 times when it's all eyes on her? That's evidence or the absence of it.
One thing, ladies and gentlemen, that I took the opportunity to say on behalf of Ms Letby, we took the opportunity to say at the start of this case in that brief period when I spoke to you, was the purpose of a trial is to test a theory. That's the purpose of all of this in fact, to test a theory, the purpose of a criminal trial. Not to come here and, as I put it, rubber-stamp allegations as if it's a done deal, and you know that and we know you know that. The whole point is to test and test each and every piece of the allegations, the evidence, the assumptions, the presumptions, the prejudice.
We are the only people who will explain to you what there is to be said on behalf of Ms Letby. We are the only people who will stand up for her. Nobody else has that role, nobody else is going to do that. The reason you hear from the defence at the end of the case is not, ladies and gentlemen, because this is some kind of afterthought, just tagged on at the end when your minds have been made up. We ask to goodness that isn't the position. You hear from us at the end because what we have to say is so important because we should be dealing with a presumption of innocence, not a presumption of guilt. And you haven't heard it yet, as I say, and I'm grateful now that we have the opportunity and we are grateful for the time we have been given to address you.
But if this is to be fair, how can that possibly be fair if minds have been closed before you even hear what's said on behalf of the defendant? How could it be? We are confident that after the work you have put in and the time out of your lives that you have put in for 8 months, these proceedings mean more to you than that.
The prosecution, ladies and gentlemen, are not in any special position with this. Don't lose sight of that. Just because they bring the case and they made the speeches that they have done doesn't mean they've got it right. That's a wrong presumption. They're the prosecution.
Just because they drum up the blame we are so hardwired to give out when faced with allegations like this, it doesn't make them right. And we've sat here and listened carefully and now it's our turn and, this being a fair trial, it's Ms Letby's opportunity to have her case presented, no matter what the prosecution think or anyone does.
Now, you may agree with the suggestion I'm going to make, which is that there has been a -- it's a suggestion from the defence -- a very hostile reaction from the prosecution, you heard it last week, to the mere fact, the mere fact, that Ms Letby has dared to defend herself and disagree with them. Hold in mind how you've seen her treated and hold in mind the address from the prosecution last week. There's something I would like to explain to you, although I'm confident and hope it needs no explaining, but you will understand, ladies and gentlemen, that anyone accused of serious crime in this country is entitled to a trial by jury and you will assess the evidence in accordance with his Lordship's directions on the law and as you're entrusted to do.
Part of that process involves testing the evidence. And that includes the defence testing prosecution evidence in cross-examination and it seems to us the prosecution in this trial have taken exception to that part of the process. I'll explain why we say that. You've watched this case for 8 months and you have plenty of experience to assess how we, the defence, have gone about our task on behalf of Ms Letby. You have seen how we've done that.
Throughout their address to you, the prosecution have gone out of their way to refer to cross-examination by the defence on serious topics, significant topics, as smoke and mirrors, repeatedly, as a distraction, and even saying the questioning involved in defence cross-examination was gaslighting you, that was said on 21 June, that:
"[Our] questioning was trying to create in your minds the impression there is something seriously wrong with the hospital. It's gaslighting you, isn't it? It's doing to you what Lucy Letby was doing to her colleagues in the Countess of Chester."
Oh really, that's what we've been doing for 8 months? That is unjustified and unfair. That was said before we speak to you, you may think maybe, to get you to think about the defence case before we've even had the opportunity to do so. Well, you've watched the case, you can judge the merits of the questioning from the defence and the prosecution and you can weigh up the answers you got.
The defence have absolute confidence that you are perfectly capable of deciding, for example, which nurses have appropriate experience and which didn't, and you can judge -- and this is what the gaslighting comment related to, not by accident we say -- you can judge who has changed their accounts on discolouration and whether that matters. Because that was one of the topics it was applied to when we were accused of gaslighting you.
The prosecution don't like us criticising the hospital or its care and, if those comments are anything to go by, it seems they don't want you to think about that and they certainly don't like us criticising Ravi Jayaram or David Harkness for their inconsistent accounts of discolouration and their failure even to put them in their notes or inquests for the statements, the inquest statements they made at the time. We'll go back to this because we're going to look at the evidence. What a stunning omission that was for such extraordinary discolouration.
Had we not cross-examined them about this, you wouldn't even know about it. You'd just have what they said in evidence, not what they didn't say in the years before they made their statements to the police when they had every opportunity to do so. And we say that identifying that in cross-examination isn't gaslighting, it's what you'd expect to happen in a criminal trial. It's the evidence and evidence you now know about and we say it is no fair way to deal with the defence by launching attacks on the defence for what we are entitled to do, least of all with regard to pieces of evidence that you may agree go right to the heart of a central issue in this case. There's a coincidence, isn't it, that it was levelled to us on that issue? Ms Letby was accused of gaslighting throughout and we disagree with that, but what I'm dealing with now is the suggestion that we were doing that. We've had a lot to deal with in this case and whether you agree with what we say at the end or not, ladies and gentlemen, our task has been to investigate what has happened in accordance with the defendant's case and to challenge the prosecution. And that process, you've seen it, is not smoke and mirrors and it's not gaslighting. It's called a fair trial and we think you would expect nothing less.
Can I just pause at this point, ladies and gentlemen, to consider the fact that, of course, what we're dealing with in this case is a unit that's part of the National Health Service, the NHS, and the NHS has provided most of the witnesses in this case and it sets the working environment in which these events took place and I need to mention this because it's important I make it plain that in no way is this case about the NHS in general or doctors and nurses in general. It isn't. We are looking closely and critically at the level and standard of care in the neonatal unit at the Countess of Chester Hospital, amongst various issues, and the doctors and nurses at that unit, or some of them.
And ladies and gentlemen, specifically, we are looking at that unit over a twelve-month period when it did face unusual and increased demands in the care it had to provide. The trial is not about the NHS in general and it's not about doctors and nurses in general.
Although we are critical of care at the Countess of Chester neonatal unit, and we say we are entitled to be if the evidence supports this, and we say it most definitely does, there has been a concerted effort almost along the lines of how dare the defence criticise doctors, nurses and the unit, how very dare we, almost a sense of outrage we should have done such a thing. We all feel strongly about the NHS and we are protective of it and we're all affected by it. We'll either work in it or have family who work in it, or family or friends who are in it because of the care they receive. It's close to all of us. But that doesn't mean we shut our minds to the possibility of things going wrong or mistakes being made or sub-optimal care.
Actually, at the beginning of this case, you may remember, the prosecution acknowledged sub-optimal care where [Baby D] and [Baby H] were concerned, although they've not said about [Baby H] and sub-optimal care since. They did acknowledge that at the beginning.
They say there's been no medical evidence of shortcomings. We say they're wrong: there's been plenty of evidence and we'll look at that.
When we've gone through this indictment, there is evidence of sub-optimal care and I'm going to summarise, in fact, some of it now so you follow one of the areas we'll be looking at and so you can see why we say these things.
[Baby A] and the delay in fluids, 4 hours, a newborn. That's sub-optimal. We'll go through it. Dr Bohin agreed, that's not right. And the line that was placed too close to his heart by Dr Harkness -- "not in the best position" it was described eventually, and it wasn't moved, was it? We'll go back to the evidence of that. Can I say right now we recognise, to assist you, the question isn't just, is there sub-optimal care; the question is, does that account or can that account at least in part for what happened? So I know it's not a question of me standing here and saying, "This is all sub-optimal therefore the defendant's not guilty", you have to look at it in context and say, even if it was can that explain it? That's the important thing with it.
But just so it's clear, given the way we were dealt with last week on this topic, I'm just reassuring you at this point, and maybe you need no reassurance, but there is plenty of sub-optimal care knocking round in this unit on these charges.
That was [Baby A]. [Baby D] and the failure to give her or her mum antibiotics when it was recognised that should have been done.
[Baby E]. We say the failure to intubate or give blood transfusions in time. Some of these are more contentious than others.
[Baby H]. There's a list there and we're going to come to it, but the standout one when we look at this case is the failure to place the second chest drain in the correct position or to secure it properly and the failure to give surfactant when it should have been given.
[Baby J] and poor management of the stomas.
[Redacted].
[Baby N] and the failure to have factor VIII ready. Remember factor VIII? It was what he was deficient in. We heard about this from Professor Kinsey. That's probably a couple of days down the line.
[Baby O] and mistakes with ventilation that caused or appeared to cause a pneumothorax and then getting the doses of adrenaline wrong pretty fundamentally during resuscitation. Some of these are clearer. Some of these are more contentious.
[Baby C]. We say the failure to react to the dark bile aspirates for 24 hours is significant, although, despite most of the nurses agreeing what a red flag that would be, nobody seemed ready, particularly amongst the experts, to accept that -- they challenged there was anything significantly wrong.
[Baby Q] got moved to a tertiary unit after three bilious aspirates because that was the right thing to do on the [Baby Q] count, but you see it all changes. With [Baby C] it doesn't work for the prosecution to say that, so their experts backing them up, and we'll come to the experts, were very keen to point out that 24 hours of dark bile doesn't trigger the same effect. That's why the evidence is for you, ladies and gentlemen.
Much of this is linked, we say, to the fact that there were babies here who were not in the right place for their needs and that is all on top of the medical challenges created by the condition of these babies in the first place.
It is easy, isn't it, to lose sight of how clinically fragile babies like [Baby G] or [Baby I] were and how prone they were to serious problems, irrespective of what is alleged against Ms Letby, and how often they were being cared for, we say, by staff who were not always adequately qualified to give them the support that they needed? And of course, if that happens in one place, that can put pressures on a unit or on staff elsewhere.
Despite that evidence, I'll come to the evidence in due course, but despite the evidence behind what I'm describing, with one exception, the senior consultants in this case have refused to accept that anything was wrong or done wrong to any notable degree in the whole of the 12 months we're dealing with. The exception, ladies and gentlemen, is [Dr C], who recognised in the case of [Baby E] that she failed to attend hospital for the emergency, and she agreed it was an emergency that was developing with his bleeding, as quickly as she should have done. Even then, David Harkness accused me of being disrespectful when I suggested that he was out of his depth, he wasn't out his depth. We will go back to it, but it wasn't really good, was it, because they did nothing about a blood transfusion for hours when you might have thought it was blindingly obvious it was required.
We say he's not going to admit it, is he? And on the evidence, ladies and gentlemen, you can be sure that some doctors will be slow to reveal mistakes and the reason you can be sure of that is because we have had expert evidence on that very point. This isn't something we are just coming out with on the basis of "doctors are bad".
Dewi Evans on 25 October, being asked about various aspects of hospitals, gave one of the few pieces of evidence from him that we agree you can rely upon. When talking about the lack of information on air embolus, he said this -- I don't know if you remember it or not, you'd be doing well from 25 October, but maybe you have an exceptional memory too. 25 October, Dewi Evans said:
"You have to rely on the fact that medical teams are honest enough to disclose the fact that a child under their care died of air embolus because one tends not to spread news about the mistakes we make."
"One tends not to spread news about the mistakes we make", from the prosecution's lead medical witness, expert evidence on that topic. And by the Royal we, he clarified, we is a Royal we for doctors. This isn't me having a go at all doctors, but this is a piece of evidence to keep in mind here. We all know doctors, we rely upon them, we're related to them, we have friends who are doctors maybe. Trust the doctor. We are not talking about all doctors, we are not talking about all nurses, we're not talking about all hospitals, but we're taking this piece of expert evidence and carrying it with us perhaps when we look at the evidence in this trial on this unit.
I asked him if doctors were slow to acknowledge when they make a mistake and his reply was:
"Yes, absolutely."
Literally, "Yes, absolutely", like it was a good thing. Well, I'm sure he didn't mean to hand that to us. It's one of the many things that came out of one of his relatively lengthy pieces of evidence. And one hopes that that isn't right and that people in these positions are better than that. But that's his evidence:
"One tends not to spread news about the mistakes we make."
And in a way, I'm going to suggest, haven't we seen that in this trial? Resisting criticism, not just of themselves but also, it has to be said sometimes, one another. Not always, I'm sure there are many who will accept things, but we haven't had many here.
The doctors in this case, none of witnesses in this case in fact, none of them, doctors, nurses, Ms Letby, anybody, is in a category beyond criticism. But because the prosecution have relied upon large chunks of what the senior consultants said in evidence by way of what we say were pretty much pre-prepared statements almost, like speeches they came here to give -- you perhaps saw it, you perhaps got used to this as we went along: Dr Gibbs would come, inevitably we'd get to the speech when the speech came, or Dr Brearey or Dr Jayaram. The prosecution have taken these lengthy parts of evidence and used them.
Please, ladies and gentlemen, we say, don't think that all these senior doctors coming here to give evidence did so without motives of their own. We say this is important and because of the way that it has been presented, as if they can be taken as neutral and a good guide to what's happening, I do need to deal with this.
We say that in fact, however you look at what happened at the Countess of Chester between June 2015 and June 2016, however you look at this, there was a terrible failing in care, wasn't there? Terrible. In addition to the risks of deterioration, or even death, that attaches to many of the babies in this case, we say, this was a unit that took more than it could care for, with higher levels of care requirement than it could provide, and we say in some cases the care fell to sub-optimal levels, to below the right standard.
Now, when I've suggested that in evidence, the senior doctors in particular have dismissed this and in various ways and on various occasions they have described how they suspected or believed that a nurse, Ms Letby, was deliberately harming babies in their care for months and months.
We don't accept that the level of suspicion they're describing was anything like as strong as they came here to say, for the reason I'm coming to now, because if they're right that means for almost a year, certainly some of these doctors, two in particular, did nothing to raise the alarm and said nothing to raise the alarm when absolutely nothing would have stopped them from doing so and when you may think they surely had a duty to do so if the level of suspicion was as high as they say and if they really believed or suspected that a nurse on the unit was deliberately harming babies. But if they're right, that failure to do anything is staggering. And that's why we say, whichever way this is, it's a terrible failing in care.
Now, this is all linked to the defence of the evidence of the senior doctors mounted by the prosecution. You'll understand that in this trial the stakes are very high. We all know the defendant's position, that's obvious, these allegations are the worst there could be. They must also be very high, mustn't they, for a number of senior people associated with that unit? I've gone through it with them, their positions of responsibility. We don't say "doctors bad". That misrepresents a serious point we're dealing with, so I'm putting that right now. But what we do say, as we have said throughout, is for those senior consultants who presided over whatever happened in that unit between June 2015 and June 2016, Ms Letby getting the blame for what happens matters. I talked about this when I identified the issues to you and I've cross-examined them at one time or another on these points.
The prosecution introduced the expression "the Gang of Four" when introducing Ms Letby, and that related to Dr Brearey, Dr Jayaram, Dr Gibbs and [Dr B]. However they have described them, we say don't let anyone pretend that they have just come here in a spirt of cooperative neutrality to do their bit. Of course they have an interest in what happens here. The extent to which each one of them has gone out of his or her way to do their bit to damage Lucy Letby in front of you is obvious if you think back to the evidence of what's been said and the suggestions that have been made.
Dr Gibbs at one point went on a kind of one-man dash for glory to suggest she was responsible for all of the pneumothoraces in [Baby H]'s case. Do you remember that? "They kept on happening at night", look at the dock. Actually, they didn't: David Harkness put in the chest drain for the pneumothorax in the morning. That's how neutral it is.
Now, one by one, those consultants -- senior consultants, in particular -- have lined up in their evidence to do their bit to do down Ms Letby, some blatantly, some more understated. We'll be coming to it. I don't expect you to accept anything I submit to you without looking at the evidence and basing it upon the evidence, and I will identify it for you as we go through the evidence.
Some blatantly, some more understated, but all designed in fact to assist this prosecution and the prosecution have used those pieces of evidence enthusiastically in the presentation of their case at its conclusion.
So one way or another, this unit failed. One way or another it did and you know this and you know that the blame for absolutely everything on this indictment is being heaped on her (indicating).
"One tends not to spread news about the mistakes we make." Yes? This case is a prime opportunity to hide poor performance and bad outcomes, isn't it? Now, the evidence is clear that the unit was unusually busy between 2015 and 2016. Noticeably busier than it had been in previous years and busier with babies who had more complex needs than before. We've heard that from so many witnesses. And at the same time there was no change in the staffing levels to accommodate this.
These are witnesses called by the prosecution as well as Ms Letby describing it. Of course it's going to be difficult to say to somebody, "Right, you tell us exactly how your failure to staff things correctly had an effect on this day in that way" You can work out if that's a reasonable thing. But at the same time you can work out: does it create an environment in which risk increases because people are tired, people are overstretched doctors are running to and from the neonatal unit back to the delivery suite in the middle of procedures? How many times did that happen in this case? Do you recall the final -- tragically the final [Baby I] event? Dr Chang and Dr Gibbs deciding, "Do we/don't we keep ventilating", the two of them being required elsewhere, "Do we take her off the ventilator, don't we, is she fighting it, what do we do", under quite some pressure of time.
Dr Chang said to us, "We talked about the pros and cons", the pros of keeping her on, the cons of taking her off. When I asked her questions I said, "Could you tell us what the cons were". Long silence. She wasn't going to discuss the cons, was she? She said, "I don't think there were any", something like that. So why say it then, "Discussing the pros and cons?" We'll come back to what Dr Gibbs said about that decision when we look at [Baby I].
Doctors not actually making it as far as the patient to review them, like Dr Mayberry with [Baby P], and not making notes, like Dr Mayberry with [Baby O], no note made. That was when Sophie Ellis was on duty. When Lucy Letby is on duty if a doctor doesn't make a note in the clinical notes she's accused of making the whole thing up, "You made it up, show us the note in the clinical records", "There isn't one", "You made it up". Okay, Sophie Ellis, show us the note in the clinical records for Huw Mayberry seeing [Baby O]. She can't because he didn't make one and that's fine, that's just fine.
Well, you may agree, you don't need the BAPM guidelines to establish the fact that if the staffing isn't correct, particularly intensive care staffing, that is a problem. And it isn't right just to airbrush over poor staffing as if it could have no real effect.
And in fact the evidence of Dr Sally Ogden, who was a registrar looking after [Baby C], was helpful in this regard when she gave evidence on 27 October, which feels like ages ago now, but that's when it was. She agreed that around June 2015 and onwards there was a particularly busy time at the Countess of Chester. And she agreed it was not just a matter of the sheer number of babies but the care needs of individual babies and Dr Ogden explained that this could be a combination of staffing levels, acuity on the unit more generally, and how many babies at each level. And she agreed that in reality busyness is a function of the number of babies and their acuity and the number of available staff. That's important because it creates a situation, an environment in which there is a strain across the system and we say, this is a matter for you to consider as you're entitled to, that increases the likelihood of mistakes and also, and this may be important, it increases the likelihood that emerging problems will not be identified properly because monitoring isn't done properly because people are overstretched.
Mel Taylor, on count 1, was looking after [Babies A & B] at the same time when they were both intensive care babies, when [Baby A] hadn't been on fluids for 4 hours, and when a long line had been left in that was not in the best position and was meant to be moved and it wasn't, and she's split between him and [Baby B]. And in fact there is an issue on the readings for [Baby A], which we'll come to tomorrow, have a look at them.
So it's not just the blunt fact of a mistake there and then in the moment, perhaps a danger of failing to identify emerging problems. And as you heard again from many of the nurses in this case and some of the doctors, the babies in this unit, babies like this, can exhibit changes that are quite subtle. That's why you need experienced people monitoring them, particularly with the more vulnerable ones, the more medically fragile, and they can deteriorate and they can deteriorate very suddenly, very quickly.
Not only, of course, did the unit receive -- it seems, would be more busy over 2015 to 2016, but there was an increase in what's called the acuity of the babies. You know, ladies and gentlemen, the Countess of Chester was designed to deal with babies of 27 weeks plus, but over the period we're looking at it got much busier with babies putting higher demands. And if there are higher demands from more babies that puts a strain across the system, doesn't it? We say there are babies even amongst the babies on this indictment who would have been better, far better, at a tertiary unit.
[Redacted].
You know that in some cases there were problems with some of these babies over and above the mere fact that they were premature, and that carries issues with it. I have mentioned [Baby C], [Baby G] who was in and out of the tertiary unit from the start. [Baby I], similar to [Baby G], with similar problems. [Baby H]'s chest drains. [Baby J]'s stoma bag. The whole unit is under a much greater burden.
Dr Gibbs sought to persuade us all that it's no different from any other unit. Well, whatever the nature of the Countess of Chester unit, the evidence is that over this period what it had to deal with changed. That's the point: it changed. And in fact, we know from his evidence that at the period we're looking at, there had been seven consultants. After the unit became a level 1, it received two more. And it had been asking for them for some time. We say that's a good indication of the fact that it needed more.
So once we get to June 2016, ladies and gentlemen, the end of this period, it had been identified there's a change in the hospital, it was taking babies of a lower acuity, and it had more medical staff, so perhaps better able to cope with demands, but that cannot explain or justify the way its staffing was organised over the 12 months of this indictment.
I'm going to move to something different after we've had a break, my Lord, if we may now.
MR JUSTICE GOSS: Certainly, yes. We'll have a ten-minute break then, please, members of the jury, and then Mr Myers will continue.
(11.39 am)
(A short break)
(11.49 am)
MR MYERS: His Lordship has given you directions on the law, ladies and gentlemen, and as you know, and as I've already referred to, they set out the law. Anything we say is subject to his Lordship's directions. But it's probably not controversial to say that the single most important direction in a trial like this is the direction on the burden and the standard of proof. It's certainly a fundamental direction. It's key.
The burden of proving what has happened is on the prosecution. This is fundamental. It's on the prosecution and it never shifts. The defence don't have to prove anything, although we have dealt with matters in detail during the course of the case and Ms Letby has given evidence, although she doesn't have to, but she has done and at length.
We must be careful not to let a burden switch across so it's as if we're saying, "Go on, you prove you didn't do it", because then we're back with the presumption of guilt and the whole point is we work with the presumption of innocence.
If you do look at the evidence in this care and step back and think, "All right, let's assume there may be an innocent explanation for this, does that stack up, is that possible", when you look at things you may see some things very differently from the way that has been presented to you in many ways up to now and you may find there are explanations where you thought there were not when we don't start with a presumption of guilt.
The first thing is the burden is not on the defence. We know that.
Then the job of proving what happened being on the prosecution, they have to make you sure. That's so important in any case, but perhaps you may think particularly in a case like this, not just because it's so serious and there's so much to look at, but there are so many areas where the evidence we say isn't clear. It may be one thing, it may be another. It may very much be one thing and not the other, but you have to be sure. So being left in a position where you think, "Possibly she did that", or, "Probably she did that", that is not sure, and that's right, isn't it, because a defendant, particularly, you may think, in a case like this, may not be in a position to explain everything that we're looking at now globally. So it is crucial to remember that, ladies and gentlemen, particularly, we say, in this case.
You may ask yourselves, "Yes, but what do they have to prove what do they have to make us sure of", and his Lordship has set this out in paragraph 4 of the directions. I am not going to read it all out because you have got it and his Lordship has been though it with you.
But the key aspect of this is you have to be sure of the ingredients of the offences on this indictment. Okay? Sure of those, sure that there has been deliberate harm, that that has been the cause, of course, of death or the collapse, and sure it was done with the intent to kill. In this case that is the intent the prosecution rest upon.
So these are legal directions and I've only summarised, barely, how his Lordship dealt with it in paragraph 4. But that's the directions on the ingredients in the indictment.
Then for you the question is: well, how do we translate that into what we are doing with the evidence because you have to have the evidence to see if those ingredients are made out. That's where you come in and look closely to see if you are satisfied by the quality of the evidence and that it can make you sure of those ingredients.
One of the reasons we spent so much time on the medical evidence in this case, or at least we certainly did during the prosecution case, is because, let's not lose sight of it, that is the bedrock to this case, the medical evidence, the prosecution medical evidence.
If we're not sure that harm was done, that's it. If it's possible the reason a baby has deteriorated is because they were unwell or because there was a mistake in their care or a combination or because of something we can't identify that could have taken place, unless we're sure it was the harmful act that did it, that's not enough. So it follows that we have to have the medical evidence and the expert opinion to identify what's happened where possible.
Sometimes that can be done with more or less precision, the prosecution may say, and they may well say you can look at the circumstances and draw your own conclusions, and you can of course do that. But you may agree that if we have medical evidence and expert opinion, the more clearly that can identify what it is that is meant to have happened, the more confidence you can have in being sure.
And by the same token, the less confidence you have in it, the less clearly it does that, the more inconsistent, the more it has appeared just to change, to fit in with emerging facts just to keep the allegation going, the less confidence you can have in it and the less sure, surely, you would be. So we ask you to be careful but to keep a close eye on the medical evidence because that is the foundation of this case.
If the medical evidence does not establish harm being done in any given count, if it's possible it wasn't harm that caused it, intentional harm, we're not there, are we? We're just not there, nor should we be, given what we're dealing with, nor should we be.
Twenty-two counts, ladies and gentlemen, and there has to be -- or you have to consider each count separately and you'll bring back separate verdicts and it's a matter for you what they are. Of course, as you have been directed and as the prosecution have relied upon, one count is capable of supporting another if you find underlying matters that give you sufficient certainty that you can apply them across the counts in that way. You've got directions, in fact, in section 7 of his Lordship's directions as to that, but you still have to consider these separately and look at alternatives before you can be sure of what the prosecution allege however we do this.
Now, Ms Letby denies all of these allegations. She denies doing any of them. And if we're going to deal with the evidence, we respectfully submit, in a principled and just way, we must keep measuring the evidence against the offences on the indictment that are alleged and that means identifying harm being done, so you're sure about it, whatever form that was, and being sure that there was an intent to kill at that time.
I make it plain, Ms Letby denies doing anything like that on any occasion. But what you will be doing is to look at the evidence and see: can we be sure we can identify harm being done, whatever form that was, and can we be sure that's accompanied by an intent to kill? This case is about a consistent intent to kill. So please keep that in mind when, for instance, we have Ms Letby raising the alarm time after time or caring for the same babies day after day before and after these allegations when plainly, we say, there is absolutely no intent to harm them at all.
It's not good enough to have this endlessly changing theory which just turns on when it can be slotted into whatever available evidence there is. You've been told repeatedly by the prosecution, or asked repeatedly by the prosecution, to look at the whole picture and we agree with that, particularly on the question of intent.
Ladies and gentlemen, we will look at the evidence or what evidence there is of harm being done as we go along and we'll look at whether the evidence sits squarely with an intent to kill, so that you can be sure of that. So we'll look at that intention, but I'd like to say a little more about intention at this point because we say that the evidence, taken as a whole as well as in individual cases, is utterly inconsistent with an intention to kill. That's because harm is not being done in the way alleged. It's a good test of that.
There's questions you may want to ask yourselves as you go through this. For example, if this case is about an intent to kill -- I make it plain, you understand, we don't accept any of this, but I'm looking at it from different positions, looking at how you may look at this. If the case is about an intent to kill, why change it? Why take different risks? If something's worked and you got away with it, why change? Use what worked. Why on earth would you go back to what didn't? Yes? On this prosecution theory that keeps happening, which is strange if that's the intent. If an air embolism is so easy and so deadly and, let's face it, according to the prosecution it seems to be something you can do any time, any place, anyhow, just do that. Why change it? Why take new risks? Why risk scuttling back and forth topping up a TPN bag with insulin on a busy unit with people watching, people present, getting it out of the fridge, getting it in the syringe, however it's meant to be done? We actually don't know, do we? We don't know, we haven't got a clue.
Considering that, why -- it's a terrible thing to say, but I hope you understand the reason I'm saying this: why would there ever be attempted murders with what's alleged here? It would happen every time, wouldn't it, or most times? It's awful talking about it like this, but we have to get to grips with this given what's being said. The reason why we say it doesn't work out is because this is not what was happening because if it was the picture would be very different.
With the insulin, we'll come to the insulin in due course, [Baby F], [Baby L], I question whether there's been a significant error here. The prosecution said in closing:
"By the time [Baby L] was poisoned [this what they said last week] the level of insulin in [Baby L]'s blood was double what it was in [Baby F]'s blood."
"So the poisoner had failed to kill [Baby F] and 7 months later, by the time we get to [Baby L], the level of insulin in the blood is twice what it was for [Baby F] and that tells you a lot about intention, doesn't it?
"It may do, it may not, that's something to look at.
But actually they went on to say [Baby F] survived, so the poisoner, Lucy Letby, upped the dose for [Baby L]. "What clearer evidence of intention to kill could you have?" And we question whether that isn't actually the wrong way round.
For [Baby F], August 2015, the insulin was 4,657 picomoles to 169 picomoles of C-peptide. 4,657. Eight months later, [Baby L] was 1,099, yes, 1,099, with 264 C-peptide. So actually, a lower ratio in fact, the C-peptide was higher and there's a lot less insulin. It's significantly less potent if that's right. That's the evidence.
The second time round, that must be about a quarter the strength on the insulin if that's what's happened. 4,657 we're told with [Baby F], 1,099 with [Baby L]. That's not doubled, it's a quarter. As evidence that was wrong. It's the opposite.
The point they tried to make is actually the opposite: if there's an intent to kill, whatever's happened, it's not going to be a quarter the second time round, is it? And if that's right, the prosecution have made an excellent point for the defence. And if that's right, what clearer evidence could you have that whatever is going on here, that's not an intention to kill, whatever has happened? We'll deal with insulin in a little more detail when we come to the cases of [Baby F] and [Baby L]. And we'll look at what happened with those babies or, rather, given the massive doses we're told they received, what didn't, and the circumstances and the bag changes which we say make absolutely no sense in the case of Lucy Letby, how on earth that's meant to have been done unless we work with a presumption of guilt.
Bearing in mind the job of proving a case, ladies and gentlemen, you may want to keep in mind the nature of the allegations that the prosecution have put before you and the way in which aspects of the evidence they rely upon and the way they have tried to get there changes as they've gone along and new things have been introduced and various things have been dropped, which we say is indicative of a case that is dedicated to its theory and trying to prop up the theory at all times.
Various factual allegations emerged as we got into the defence case and Ms Letby was cross-examined and which came thick and fast and seemed to come out of absolutely nowhere given the case we've been dealing with 6 months beforehand. We'd had a few suggestions that charts hadn't been completed properly or initials hadn't been put in the right place, but in the course of 8 weeks we seemed to switch to some sort of wholescale document fraud. We moved away from the medical evidence and became buried in documents. So what happened with a child that's about to go to Stoke-on-Trent or someone else in another nursery, documents plucked out of page 34536, whatever it was, from the exhibits, bowled at Ms Letby as she was giving evidence when it hadn't featured in the case up to then. Suggestions of doctors' names being inserted into the notes when that had never been the case until it came to Ms Letby being cross-examined.
We've seen where in the notes there's reference to Dr Beebe or Hunt, or rather the doctor attending at the time that it would have been Dr Beebe or Dr Hunt and we've seen a reference to Bernadette Butterworth in the notes for [Baby N] and Ms Letby has been accused of inventing these people attending. You've heard that.
If that's right, if that's right, why didn't we just ask those witnesses about it when they came to give evidence? They've been enough times. Whatever criticism is made of us for not cross-examining [Baby N]'s father [Father of Baby N] about a phone call, and I recognise that, witnesses like Lucy Hunt or Bernadette Butterworth, in that case, were available, and if the allegation is about falsely adding their names or identities, well that should have been dealt with, we say, in the evidence, with them. They should have at least been asked about it.
We spent 6 months on medical evidence and by the end of the case, we suggest, it seems to have turned into a fraud on a scale that could never have been predicted. It's all become about who wrote what on what piece of paper. We say that isn't just by accident. We say it reflects the fact that the prosecution have been looking for things they can reach for to try and shore this up as it goes along. Because why else not deal with these things in evidence before we get to part-way through the defendant giving evidence? When you think about the way she's been criticised for missing off the word "stained" from bile-stained in paragraph 70 in the defence statement, was it, then failing to put wholescale parts of the prosecution case into evidence and then coming up with it when she gave evidence, we're critical of that.
And really, anything and everything has become an allegation as we went along. Just a couple of examples...
Before I do, the reason we have the opening and the indictment and charges identified and the sequence of events with the black tiles identifying events is so we know what we're dealing with and we can then measure the prosecution case against that. By the end of it, just about everything is roped in. I'm not sure if Mr Murphy can help, but I wonder if we can get up the tile from the [Baby H] sequence, 210, 23.50.
Here we are, yes. This is a note by Alison Ventress, made 23.50, 25 September. It relates to [Baby H] and if we just look down this entry, please, Mr Murphy, down towards the bottom of it, we can see here:
"Second chest drain advanced back to 4cm as was almost out. Done prior to chest X-ray."
This is the one she put back in. Do you see that? It's the last two lines, ladies and gentlemen. Alison Ventress gave evidence about this, various people did. We cross-examined experts upon how it shows that the chest drains move around, which is one of the points we have made, and they do, the inside and out.
That was no part of any allegation. Not suggested in the opening. It's not in the opening, it's not in the sequence of events, nothing. Then it came out of nowhere in cross-examination: you did that, did you do that? It suddenly became part of an allegation. You can't win, can you? If anything that happens just suddenly becomes part of an allegation, is roped into it, that's a never-ending, endlessly flexible, endlessly changing prosecution case.
No suggestion of that until some point when it -- the prosecution chose to do that. No basis for it but it's there, so: Lucy Letby, something's in the notes, guilty. It's that principle again, isn't it, the presumption of guilt? Can we look at tile 199, please, for 24.00? If we look down here, there's an entry on the left-hand side of the intensive care chart where it refers to bloodstained secretions that Lucy Letby's noted. Can you see that? It's very hard to see but it's in there. 24.00 for [Baby H] again. "Bloodstained", we saw. In the course of cross-examination suddenly that became Lucy Letby possibly interfering with [Baby H]'s ETT at around midnight to cause bloodstained secretions. Nothing about that before then, no expert even picked on that. Just going through looking for things, putting them into the allegation, trying to bolster things on your lists, and we're coming to the lists, like, what was it? "Children who had bleeding or other unusual signs in their throats when the medical staff looked down their windpipe in preparation for intubation." So having come out with this in cross-examination, that's now on to the list. We'll look at those lists in a bit, but setting things up to some extent just to pop them on a list. Never dealt with in the evidence nor appeared in the course of cross-examination.
Thank you, Mr Murphy. We can take that down.
The baby AF as an example, ladies and gentlemen. When we're dealing with [Baby N] and there was a long line of questioning by the prosecution of Ms Letby about how she'd been on the phone when she was meant to be feeding baby AF. You may recall this because they referred back to this piece of evidence.
Baby AF is nothing to do with this case. The prosecution showing how Ms Letby had been on the phone at or about the time she was meant to be feeding baby AF. Nothing we'd dealt with in evidence up to that point but there we go, it gets put to her. The prosecution ask her how she managed to text while feeding and that we spent more times on the texts than the incident -- we spent more time on those texts than the incident we were meant to be looking at. Ms Letby said to the prosecution, do you remember:
"You think I pushed it in."
Cross-examination on 7 June:
"You think I pushed it in."
To which the prosecution said, "I do".
On what basis? Where on earth has that come from, "I do"? That is how readily allegations are made in this case. That's how little it takes. Absolutely no evidential basis for that. If the prosecution are going to say that, you may have thought we need evidence, we need radiographs, we need a medical opinion, a vomit maybe, something with baby AF. No. An allegation on the hoof.
You may think, "I don't care, that's fine, they can do what they like". Well, if you do, nothing I can say is going to help, is it? But if you're thinking to yourselves, "This is meant to be dealt with in a balanced, fair way based on evidence, we want to see a prosecution case that isn't just constructed out of whatever happens to be passing by and we can make use of", it matters because it shows that's what lies behind the allegations you are dealing with or can do in certain situations. It doesn't take much for them to be put there, does it? No one suggests AF had a vomit or was unwell. Years investigating this. I'm just taking this as an example. There were lots of them. I'm not going to go through all of them because they came thick and fast. But the enormity of that, suggesting she's assaulted another baby because she wanted to make a phone call, not on this indictment, just made in passing, that allegation. That's what we're dealing with. That's all it takes. "You think I pushed it in", "I do". That's good enough then? That's good enough.
One other matter generally, ladies and gentlemen, before we move on, talking about delay. His Lordship will give you a direction on delay in due course. You may want to consider what effect delay has had on the evidence in this case, but without a doubt we say the defence or the person who is at a disadvantage, however we approach this, and the person for whom you will want to make some allowance where appropriate, is Ms Letby. Nobody else is on trial for 22 counts of murder and attempted murder.
On some occasions delay is linked to evidence that has gone missing -- I am going to give you an example of where we get to with this -- missing door swipe data. From our agreed facts, and it's agreed facts 57 and 58, we see the door swipe data is missing for 17 July. You don't need to go there right now, but 17 July to 21 October 2015 and also for some individual dates within the period where we do have door swipe data.
Now, as it happens, and you can decide if this is just coincidence or not, various accusations have been levelled at Ms Letby that correspond with the point at which we don't have door swipe data. I'm going to ask Mr Murphy to put up tile 61 from the first [Baby I] sequence. We might need to go to 61 and 62.
Ladies and gentlemen, just so you can zero in on this, this is the note made by Ms Letby in which there is reference to a review by the doctor at 15.00 for [Baby I], and we had quite a lot of questioning -- it's one of those ones where it's said she invented this, invented the 15.00 review. It starts here, the note is at 13.36 here, but can we go across the page, please. The note carried on at 19.30:
"Reviewed by doctors at 15.00."
And so it goes on. Do you remember this? We have had quite a lot about, "Oh, you have invented this whole thing, you've invented this", because there's no note by the doctor in the clinical notes. I think it will be Dr Hunt. So accused of making it up. We're going to look at this in more detail shortly but one thing to bear in mind is when the prosecution accuse Ms Letby of this it happens to fall within a period where door swipe data is missing, so we are unable to point to the doctor coming on. That's the point. We can't. And as it happens, that gap means they can make an accusation like this, as it happens, because we can't show who came and went at that time.
Similarly, if we consider what happened on 14 October with the third [Baby I] when Matthew Neame attended -- I am going to ask Mr Murphy to put up tile 60 from the [Baby I] sequence number 3. If we can just enlarge that, please, Mr Murphy.
Can you see, ladies and gentlemen, the middle:
"At 05.00 abdomen noted to be more distended, veins more prominent."
And so on. It says:
"Reviewed by Registrar Neame."
About four lines down. Putting the name in to be precise:
"Reviewed by Registrar Neame."
That's at 05.00 and then the prosecution take us to Dr Neame's note at tile 79. We'll see what that says.
This is the note which Dr Neame has completed and put the time as 05.55 and we can see the things he was involved with there. But this is used to suggest that she delayed in calling Dr Neame. Somehow this now proves, so we can be sure, I suppose, that Dr Neame wasn't properly called as soon as he could.
Well, first of all, when you looked at Ms Letby's note, it describes the event at 05.00 and then just goes on to describe what happened after that. This note has been written at 05.55. We say that is when it is written, that's how they do the notes. That doesn't go to show there is a delay.
But over and above that, the problem for Ms Letby is this falls in the period of the absence of door swipe data and so we cannot show that Dr Neame attended and the prosecution have what could be called a free hit, saying that he didn't attend at the time, we say, the right time, and they have a free hit on saying that he was very late.
Now, what is interesting is these examples, these accusations, have fallen into periods when we don't have door swipe data. Okay? I recall, we haven't had an accusation like this where the door swipe data can settle the issue, so it seems the prosecution have selected this particular part of the allegation from part of the case where evidence is missing that is capable of assisting the defendant. What a coincidence if she only happened to do these wrongs on dates when coincidentally, years later, when door swipe data went missing. Either she got lucky or she has an amazing power to see what was going to happen. Wherever we get to, we ask you to keep those in mind as examples of where not having evidence, where the prejudice lands and, in those cases, the way not having that evidence has been used.
We'll come back to the question of whether a doctor attended at 15.00 with [Baby I] a little bit later. Thank you, Mr Murphy.
Again, on the topic of things that are missing, just by way of illustration, missing post-mortem evidence in the case of [Baby E]. We say the prosecution and their medical experts have taken full advantage of the absence to hold a post-mortem (sic) in those, we all recognise, tragic circumstances, and they really were, but actually, to allow them to present allegations of an injury for which there's no physical evidence. The absence of a post-mortem has been exploited to the full. In closing, last week, the prosecution stated that [Baby E] was "bleeding from the throat", "bleeding from the throat". Well, we will have a look at the evidence of [Baby E] and bleeding, ladies and gentlemen, and again, I've said so many times, I repeat it now, when we're dealing with these we intend no insensitivity to the children or their families by talking about them like this. They all matter enormously to everyone involved so please don't think that when I talk about this or that it is done with any lack of feeling, it isn't. We have to get analytical with this and look at the detail.
[Baby E] bleeding from the throat? The prosecution have put a great store by that. No post-mortem, treated at the time actually as a suspected GI, gastrointestinal, bleed, no one talking about a throat bleed. He's examined by that many doctors, I don't recall anyone identifying bleeding from the throat. But by doing that, that has enabled the prosecution then to try to create one of their linked themes about children, and this is another list, children who are bleeding from the throat. This is another person on the same list of children who are bleeding or have unusual signs. So [Baby E]'s there. I don't recall, I'll go back and have a look as we go through, any evidence of that. We see none, but he's on the list and that can be done because we have no evidence post-mortem to show where the bleed came from.
But you may think, in fact being reasonable, if there was a bleed from the throat that would have been spotted by Dr Harkness or [Dr C]. That why it's crucial, ladies and gentlemen, to keep in mind the burden and the standard of the proof required in these cases.
Another change of topic, general topic 2. Lists. In jury bundle 2, divider 24, I think you've got a list. Could we go there? Jury bundle 2, divider 24. You should have this, ladies and gentlemen. I'm going to ask Mr Murphy to assist by putting CEH16 on the screen. Let's have a look at this.
This is one for spectacles for me. We've got it on the screen or we have it in paper. This is a list/chart created by the prosecution, by the investigators, to establish that Lucy Letby is always present at the time of relevant events and present far more so than anybody else and we know that's a major part of the prosecution case and that's something for you to consider. It's an important part of the case to them and naturally you can see why, we're not disagreeing with that. It is to be considered.
This isn't a piece of evidence in the sense that it's not something from the hospital, it's a presentational aid designed by the prosecution for the prosecution to say what they want. It doesn't show how things were on the unit, it doesn't show why events happened as they did or how, it doesn't show fault. It shows who was on duty at the times selected by the prosecution and/or their analysts. And it does that in a case that is designed to put the focus, of course, on Ms Letby.
But one thing that is striking about this list, this chart, is that although you received a welter of lists at the conclusion of the case, we'll come to them, the most striking one thing about this one is, having focused on it in the opening and given it to you in your jury bundles, there's been no reference to it at the end. It may not have crossed your minds. We didn't go there, did we? And you may wonder why that is and we think we know why that is. I'm going to suggest to you why we haven't gone back to this list but have instead been gifted with a whole spread of new lists. I'm going to explain or suggest.
Because whatever we make of events on this list, it is obvious now that it isn't complete, is it? It isn't complete this list. It's missing at least two events and maybe three, all of which are capable of being considered what could be called harm events. This is meant to have the list of all harm events based on an assessment of the evidence, particularly by virtue of the experts. There are two or three that are missing and I'm going to tell you which ones they are and then you will realise why this list doesn't really work so well now we get to the end of the case.
Before I do that, before I do that, could I just ask you to note one thing here? If you look down on this list, ladies and gentlemen, at line 21, you'll see [Baby N] for 14 June 2016, night. Can you see that? Just to remind you all, there are three [Baby N] events. The first is at about 01.05 on the morning of 3 June. That's right, that's the 2 June night shift, item 20. The second is at the start of the day shift, 7.15 on 15 June. And then the third is later that day, it doesn't actually appear here, 15 June at 14.50.
Now, what's been put on this chart, prepared pre-trial, is that the [Baby N] event, 14 June, is night. And that's right, isn't it? It's actually the 14th into the 15th. Because you may remember, we'll come back to this, the evidence from Jennifer Jones-Key and [Dr A] and in the notes is of [Baby N] becoming unwell during the night. From about 1 o'clock onwards he begins to have problems and then that went on, he kept having more problems and desaturating, and then Lucy Letby came on duty, Lucy Letby came on duty, guilty. 7.15, she walks there, straightaway [Baby N] desaturates, guilty -- [Baby N] desaturates, immediately guilty, just guilty. She hasn't done anything, she hasn't been seen to have done anything, has barely been there for 2 minutes, guilty. But that's how it goes: unwell all night, desaturation building, wham, 7.15.
But Dewi Evans and Sandie Bohin first identified the deterioration in their reports pre-trial as starting during that night. So this is correct. But of course, Ms Letby wasn't on duty at night and so inevitably two things have happened during the trial.
First of all, and we'll come to this, Dr Evans and Dr Bohin have done their level best to move the time of harm forwards into the day shift when Ms Letby got there, saying things like, well, it's not really -- yeah, we did say in the reports it started 1 o'clock or 5 o'clock, but actually you can draw a line, it's actually when Ms Letby comes on at 7.15.
This is not what was being said when this was being drawn up on the basis of their reports then. So -- although this is what it said, although those reports put it here pre-trial, by the end of the trial the experts have shuffled this into the day shift or tried on and the prosecution have gone the other way and said: ah, no, the answer to this is that Ms Letby did something to [Baby N] before she went off, even though the evidence was he was ready to go home, was handed over in good condition, a little bit unsettled at the start of the shift with Jennifer Jones-Key, and then hours go by before he deteriorates. No, say the prosecution, she did something before she went off. What we don't know. What the evidence is in support of it we don't know. But what we've got on the chart is what happened on Jennifer Jones-Key's shift and that's right. What we've had in the trial is a shift one way by the experts taking it into Ms Letby's shift the following day and a shift the other way by the prosecution saying, well, if isn't what the experts say, she did something before she clocked off. The problem is that if we stick with what this says here, where it's got Lucy Letby on the purple would be blank, wouldn't it? That's the point: it would be a blank because she's not there at that point, so that's been moved.
That's just in passing. I have mentioned there were two or three events which change the nature of this chart. The first one is [Baby C], ladies and gentlemen, on 12 June 2015. We heard about this from the defence. 12 June 2015. Dewi Evans, Sandie Bohin and Andreas Marnerides have considered the radiographs and the evidence and they are satisfied that is a harm event. Right? This is important, isn't it? That's a harm event according to them, 12 June. Air being forced into the abdomen.
It isn't in the sequence of events and it isn't here, which is odd, isn't it, if that's a harm event? It's odd. We've been over that now in the evidence in the trial.
You know now that Lucy Letby was not on duty at that time. Of course you may well think the experts are wrong to say that was a harm event, and if they are, that's going to be important, isn't it, to show how wrong they can be? No one is as bothered about that one because Ms Letby's not on duty. It's like, we'll let that one go, but they're right on all the other ones. No, they're not.
For the purpose of what where dealing with at the moment, if this is a chart showing harm events and if we put 12 June on it, as we should if we're going off what the experts say, we'll have another line without a cross by Lucy Letby won't we, it won't work. I don't know who would be on it, but she wouldn't be and this case theory beginnings to wobble.
All right, [Baby I], 23 August. Another harm event. Another occasion when the experts have considered deliberate harm was done but when there is no evidence to say Ms Letby was on duty. No one can, she wasn't. Again, we're not suggesting someone has harmed her then. What it does show is how wrong the experts can be with their nasogastric tubes and inflating abdomens again.
But also, if this chart is meant to include harm events, why isn't that on it? Because on the same evidence they rely upon generally elsewhere, it should be, shouldn't it? But it's not. You may agree the reason it's not there is because it can't be associated with Lucy Letby. And it wouldn't really help this table very much if there's another column put in it with a space in it. That wouldn't be very good, would it? So it doesn't feature. So this table isn't looking so good, so you may begin to see why maybe you weren't taken to this at the end of the case and you got something different, which we are going to come to.
We say potentially there's a third harm event that is missing if we go by what the experts say. It relates to [Baby G] on 15 October 2015. It's not an event which features on the indictment. [Baby G], there are three events, but the first two, 7 September and the one on the morning of the 21st, involve projectile vomiting. It's a common theme, it's said, between the two of them, projectile vomiting when Lucy Letby was on duty and caring for her and naturally she is therefore blamed for that and we are told there are attempts to kill [Baby G].
The point is projectile vomit plus Lucy Letby equals harm. It is right, we acknowledge, that on the first of those, 7 September, there then followed a very protracted period of intubation, resuscitation and support required, so that's something to look at. We recognise that, but that isn't the picture on 21 September, which is the second [Baby G] event. Nothing like that followed. It's the projectile vomiting.
When I suggested to Sandie Bohin that the 21 September was just part of a pattern of vomiting with [Baby G], she was dismissive and she said:
"No, I'm sorry [I don't think she was sorry when she said 'I'm sorry' to me], I don't agree with that because [Baby G] had two episodes of projectile vomiting on 21 September and she had projectile vomiting on the 7th and there were no other episodes recorded of projectile vomiting."
You remember I'd been going through various [Baby G] events and she said:
"It doesn't matter about vomiting after the 21st there's no other projectile vomiting."
Because that's what's being used to identify force feeding and harm.
So we took her to a note made by Ashleigh Hudson on 15 October when Lucy Letby was not on duty and that's at exhibit page 7477. I wonder if we've got that. Thank you. Can you see, please, the third one down? 15 October at 19.20:
"Watery stool passed, sample collected. One vomit, projectile, quite large in size. [Baby G] is uncomfortable, unsettled, otherwise very well in herself."
A couple of things there. First of all, there is more projectile vomiting after the event and Dr Bohin was wrong to which she said:
"So if I missed a projectile vomit then I missed it."
Which, as it happens, you may think, is a small thing, but that's her attitude. Ready to say there was no more projectile vomiting, which has the effect of strengthening the allegations against Ms Letby. I point out where there is projectile vomiting with another nurse when Ms Letby wasn't on duty and she simply says: well, if I missed it, I missed it. "Oh right, well who cares", because it just leaves her where she is anyway, doesn't it? We say that's the attitude.
But more importantly, we have another projectile vomit with [Baby G], one when Lucy Letby isn't on duty, and if projectile vomit is the test it should be on that table and you may think that if Lucy Letby had been on duty, it would be, wouldn't it? Just imagine if that was Lucy Letby down there and not Ashleigh Hudson. You've seen enough of this case to assess whether what I'm saying to you, what I'm submitting to you on behalf of the defendant is a fair criticism.
Something you may want to ask yourselves as we move on to the charges in this case is how often things happen with other nurses that would simply be converted into a count on this endlessly changing series of allegations if Lucy Letby had been the nurse present.
In any event, where we get to with that table is at least two events, possibly three, that should be included on it, if we're looking at harm. Certainly two. But the problem is there are then spaces and harm would have happened when Ms Letby wasn't present and that isn't what the prosecution want. So as it happens, the evidence having gone that way, we didn't go back to that table, did we? We didn't go back to it, but in light of the evidence it no longer looks like that.
We say probably three gaps for sure: [Baby C] on 12 June, [Baby I] on 23 August and the [Baby N] one, night-time, for the night shift of the 14th. That's right, that is when he deteriorated, but it wasn't Lucy Letby who was on duty then.
Lists. The prosecution have provided us with not just one, but 11. They invited you to write them down. You may well have done, you'd need to to be able to keep track of them. That's not said critically, you're quite entitled to. If you hear things which you may want to make a record of and refer back to of course you should write it down, it is quite proper to do that.
I don't know if they're in your notes where you can see them but I've got a little bit to say about those lists. So if we put away the chart we were looking at and if you have your notes of the lists present, I wonder if you could just turn to them so then you can follow through what I'm saying about them. If you don't, maybe they stick in your mind anyway, but if you have a note of them it'll be easier to follow what I have to say.
The prosecution provided you with these and at the end they said with a flourish:
"If anyone tries to tell you that there's no similarity between these cases, ladies and gentlemen, you've got a list of some of the similarities now, haven't you?"
Remember that? "If anyone tries to tell you..." I think that might be a reference to me, but I might be mistaken:
"If anyone tries to tell you..." Well, four points about these lists. Point 1: I hate to break the news to the prosecution, but they're not similar, are they? Just look at them. They're not similar lists. If one person is meant to have committed a series of crimes, how on earth are these meant to show a pattern, a similarity that makes them one person? They're all different. We've got a series of lists. If we had a series of lists of features that were the same for all children, for all 17 babies on this indictment, or maybe, with adjustments for particular circumstances, for 14 or 15 of them, so it was the same thing happening. Similar, yeah? That's right, they would be similar. These aren't similar, these are differences, masses of lists of differences. Lots of different things in different combinations for different babies.
So yeah, they're dead right, it is a list of dissimilarities. But you may think actually when you step back and look at it, that's right, they are. All that somebody has done, or a group of people, is to scan the cases in this trial for groups of different things that you can get together -- it's like Venn diagrams, isn't it -- and say:
"Well, this lot we can fit there", "But it's not 17 of them", "Doesn't matter stick them in it", "This one we can put here, there's eight there", "But they're not the same as --", "Doesn't matter, put them in it".
Lots of different lists.
If you look at them, I don't know if you have the figures there, the way the children appear is entirely different. [Baby I] appears on eight of them but given that we're dealing with seven different events, there's going to be a lot of features to pick from. A lot of these events reflect things that happen elsewhere that Lucy Letby is not being challenged with. She's on eight of them. If this is all similar, you get the point, why aren't they the same then? [Baby J] is on none of them. That's not very similar, is it? That's not similar. That is different. They are a list of different things.
[Redacted].
[Baby A]'s on two, [Baby B]'s on two, most of the babies, three, four, five. [Baby N] on six out of eleven similar features. Eleven similar features, totally different across the babies. If you go to any neonatal unit, you could make lists like this if you wanted.
Babies that were an unusual colour -- and babies, they can be. It's hardly a basis for convicting people of murder. So point 1: not similar.
Point 2. I put this down as mirror images. For each list you have, there's an almost identical mirror image of children that it does not apply to, which is weird if this is meant to be similarities. So we've got list 1, which is children who collapsed, had good air entry into their lungs, yet their saturations dropped. There are nine children on that list which means that there are eight who aren't. So we've got eight to whom that does not apply, a mirror image.
Children with bleeding or unusual signs in their throats and so on. Five were listed, so we have twelve that doesn't apply to. That's not very similar and twelve children where those findings are not apparent.
Children who demonstrated flitting patterns of or unusual discolouration and so on. Eight on that list and nine to whom it doesn't apply. Just looking around them, children whose parents -- who collapsed shortly after being visited by parents. There were seven there. However it comes about, there's ten that doesn't apply to.
You can do this, you can go through it for each list. There's a mirror image. It's a kind of trick in a way. I don't mean that in a mean way, but what I mean by trick is like an optical illusion, if any of you can think of it, where you have the candlestick or the two faces, which way round is it. I am sure you know what I mean. It was one or the other, it depends how you look at it.
A list of some things which are similar on some issues with some children and a whole load of other things that are the opposite on other issues with other children. So not similar.
Secondly, mirror images, but actually, third, and we say most worryingly as to how these were introduced and perhaps the use you're being encouraged to make of them, is the absence of proof. The absence of proof.
Now, these lists mean nothing unless the prosecution prove for each and every item, so that you are sure, that the only possible explanation for each child is that whatever is being described is linked to the harm alleged. Yes? It's all well and good saying a parent left or there was a funny colour or they had trouble breathing. To say that to you as if that proves something is to assume quite a lot. It's to assume that you're with them on all of this, "Yeah, yeah, all discolourations are suspicious, I'm sure they're all to do with air emboluses". No. No. That's missing what we've spent 8 months doing. They have to make you sure that for each item with each child, if we're looking at it this way, the only explanation is that harm was done with the intent to kill.
So each list actually is missing a vital element. And that is that whatever is described there, you would have to be sure that it was due to an assault, about harm, based upon the evidence, and that you can discount alternative explanations like medical condition or sub-optimal care. You can't just take things and go, "Oh, there we go". It presumes a lot, doesn't it? It presumes a lot on all of us. It presumes the defendant is guilty and look how it all stacks up.
So for example, let's take the discolouration. I think it was the third list you were given, but this can done with any of them -- this has to be done if you're going to do it this way:
"Children who demonstrated flitting patterns of or unusual discolouration, which the medics had not seen before and have not seen since this period."
Right. To even begin to work on that basis, for each child in that list we need to know that the air embolus and discolouration theory is valid and that's the reason why that child was that colour. We need to know the quality of the description in each case. You see, you need to have this. You can't just put down, for instance -- I'll give examples in a moment, but we need to have the quality and the description, that it's reliable, and you'll keep in mind all those inconsistencies, people not putting things in statements, descriptions changing.
And we need to be sure that if there is discolouration, we can discount that being down to a medical condition or the care the child was receiving. We have to be sure of that. Just to say a child exhibited an unusual colour -- so what? This misses what this trial is about.
If you just look at the list you had for children with flitting patterns, [Baby A] is there. Fine. [Baby A]'s there. Well, if that is going to work the way the prosecution say, we need to bear in mind and go through what alternative explanations are there for the collapse. Is this colour and the only reason for this colour what's alleged? Did he have sub-optimal care? Is there anything in his medical condition? And then when it comes to the colour, what's the quality of that evidence? And you'll remember with [Baby A], pretty poor. Nobody at the time makes any record, even though they're in a position to do so.
[Baby D], for example. You'd want to weigh up the fact that there are three collapses in relatively quick succession. There's discolouration on the first one, less discolouration on the second and, it seems, practically none on the third or none. We have to consider, well, is that an air embolus? Is that right? Does it work that way? [Baby M]. Discolouration. One witness says there was discolouration. Lots of people see him, lots of people do not suggest there was discolouration. Guess which witness it is that says he saw discolouration. To borrow from the prosecution, you know what I'm going to say. Yeah? Ravi Jayaram. An expert in spotting discolouration or recording it some time after the event.
Added to the list -- these are just examples -- [Baby H]. Discolouration. Do you recall what the basis for that is, that her dad saw something, colour in her fingers at one point of the incident? That's it. So it's all well and good with these lists -- children with bleeding or unusual signs in their throats when medical staff looked down the windpipes in preparation for intubation. Assuming we can be clear what it is the evidence is, assuming we can discount anything from their medical condition, assuming we can discount sub-optimal care, and we've seen some of the intubation that took place in this case, then you might be able to use that list.
But the point is, ladies and gentlemen, we say the prosecution have prejudged these issues in giving you these lists. It is very premature. The whole approach is misconceived and unfair because you need to decide in each case whether you can be sure that what is being talked about is linked to harm or not before you can begin to use these lists in this way. There could be any number of explanations for this and the evidence is very variable, the basis for including children under these. We say they create a fundamentally unfair situation and certainly they should not be used to short cut a proper consideration of the evidence.
I said there were four points. The fourth point is this: if it comes to lists, there are some lists that are missing. The list of the harm events when Lucy Letby was not on the unit. Put that one down. It doesn't feature, but that could be there, couldn't it? A list of sub-optimal care. That's quite a long one, yes, to put in? The list of children for whom there is no harmful act identified going to support the allegation made against Lucy Letby. And we say that actually the 17 children on that list, probably the only one which could have all the children on it, but that's utterly consistent with the defence case so it's not entirely surprising that doesn't feature.
We say, ladies and gentlemen, in summary -- we're going to look at these -- these lists are unfair because they encourage you to presume all sorts of findings with the risk of bypassing the process of looking at the evidence and the process of proof altogether, and we ask you to concentrate on the evidence. By all means, as you know you can, look for relevant similarities that are proved on the evidence, but that is done by looking at the evidence and keeping the burden and standard of proof firmly in mind. They are not similar, they're really not. You can see that, hopefully, now.
For every list there is a mirror list that contradicts it or doesn't apply, and if we are talking lists, whatever is in these can only really count if the evidence establishes what the prosecution want it to and if that can only be linked to Ms Letby rather than any other possible explanation or combination of explanations.
So by all means, you'll consider them, as you're entitled to, and you'll make of them what you will, but you have spent 8 months listening to the evidence in this case and we would urge you to be very careful about anything which is meant to be a short cut through it, which doesn't actually ask you to look at the underlying facts and is called a list of similarities when it plainly isn't.
My Lord, I've got another topic I'm turning to.
MR JUSTICE GOSS: A completely new topic?
MR MYERS: A completely new topic.
MR JUSTICE GOSS: Would you rather break off there then?
MR MYERS: Perhaps so, and we can return at the appropriate time, my Lord.
MR JUSTICE GOSS: Certainly. That would seem appropriate. We'll return at 2 o'clock, members of the jury. Thank you very much.
(In the absence of the jury)
MR JUSTICE GOSS: I think I have the wrong paper copy of the document behind divider 24. Maybe I was given this and not given the one that the jury have. The one I have has "version 2.0" on the bottom and it only has 24 events.
MR JOHNSON: Which divider was it, I'm sorry?
MR JUSTICE GOSS: 24. It's the one Mr Myers has been referring to and the one that was put up on the screen.
MR MYERS: Divider 24, jury bundle 2, I believe.
MR JUSTICE GOSS: I didn't interrupt Mr Myers because I thought it was -- mine differed from the one that was on the screen and I think that's what makes me think I've got the wrong paper copy.
MR JOHNSON: Your Lordship's version was 2.0?
MR JUSTICE GOSS: Yes.
MR JOHNSON: That's what I've got in my bundle as well.
MR JUSTICE GOSS: The one that went up on the screen had 25 events and I only raise it because I was looking to see if the jury were looking puzzled as well, but I didn't want to raise it if I had a rogue copy. I think it may be the wrong one went up on the screen and I think that the difference is that there are two events for -- I think it's either [Baby J] or [Baby K].
MR MYERS: That can be corrected, I'm sure, my Lord.
MR JUSTICE GOSS: Right. Anyway, I'll leave you to sort it out between you.
MR MYERS: Yes.
MR JUSTICE GOSS: I don't want the jury to be puzzled by this.
MR MYERS: We can correct it. It doesn't, so far as I can see, make any difference to the point I'm making.
MR JUSTICE GOSS: No, it doesn't make any difference because your point is a discrete --
MR MYERS: Yes.
MR JUSTICE GOSS: — or the points are discrete. It doesn't matter whether there's one that's been added to the one that was shown on the screen.
MR MYERS: I can deal with that. If we make the necessary correction, I can deal with it at an appropriate point if I'm allowed to.
MR JUSTICE GOSS: Good. Thank you very much. The other thing, Mr Myers, is I don't know how you are dealing with your progress as to whether it is likely you are going to be ahead of schedule, behind schedule or what, as far as this afternoon is concerned.
MR MYERS: I'm making every effort to make sure I'm certainly in schedule for where I need to be by the end of the week. I'm probably close to where I would like to get to, yes.
MR JUSTICE GOSS: Because I'm anxious that we get as far as you were hoping to get today.
MR MYERS: I'm grateful for that. Yes. There's one or two places where I could conclude. Can I confirm with your Lordship what time we finish today?
MR JUSTICE GOSS: Well, if we resume again at 2.00, we'll have another ten-minute break, but I would think certainly no later than 4.15.
MR MYERS: Yes. I should make reasonable progress to then.
MR JUSTICE GOSS: So do you think you will have completed your general introduction, which is what we're on at the moment?
MR MYERS: Yes. There's one topic which may go over into tomorrow, but that won't prevent me from proceeding in the way I need to after that.
MR JUSTICE GOSS: All right, that's fine.
MR MYERS: There's only one topic I can see where it may be better to deal with it in the morning, but if I can deal with everything today I certainly shall.
MR JUSTICE GOSS: It's up to you. If we've got to the stage where you were up to where you thought you were going to be and we still had another hour left, I would have said I'd be quite keen for you to continue.
MR MYERS: No, I won't be at that point, my Lord.
MR JUSTICE GOSS: All right. Only you and those behind you know where you are in relation to this. Thank you very much.
(12.57 pm)
(The short adjournment)
(2.00 pm)
(In the presence of the jury)
MR MYERS: Ladies and gentlemen, just to assist you with what I'm going to hope to cover in the next couple of hours -- is to take a look, and they can only really be brief looks, but a look at Ms Letby and some of the material relating to her and the person that she is or the person that she was. To have a look at some of the documents in the case, which we've had, not the documents themselves but what we say about them, and then, if there's time, see if we can deal -- and there should be time to start at least -- with having a look at the area of experts, which applies to the case, doesn't it? We'll have a look at that and then if we can cover that, that should take us through today. So that's what lies ahead.
First of all, Lucy Letby. Well, the person she is, and it might be said the person that she was, is at the heart of this case, or one of the issues at the heart of this case. Let's just have a think about that.
Never been in any type of trouble before, which is perhaps not a surprise given the nature of her occupation. But who and what she is and was are important and you'll have to form an opinion of her with all the subtleties that go with forming an opinion of somebody. You will have formed an impression from her evidence, maybe quite a serious character. Some people are frothy extroverts, not everybody is.
If we look at the photo of her noticeboard, which is at page 13 of the photos, D26, page 13. Thank you, Mr Murphy. This is a photo which was taken at the time of that first arrest. If we can just scroll down a bit to see the noticeboard, it was a noticeboard in the kitchen (inaudible) square.
It's a snapshot, isn't it, really, perhaps as good a snapshot as we are going to get in many ways of the person that she is for the purpose of this case, the person that she was. I don't know if we can scroll it down, Mr Murphy, to get the full image. Thank you.
It's hardly going to decide a case like this, an image like this, we know that. But actually, it's not unimportant, is it? When you think about the things that have been said about her by the prosecution and things said to her in cross-examination and the picture to be painted, this is the person that we're actually dealing with at that time. Thank you, Mr Murphy.
Nothing to support the impression created. It doesn't mean she can't be, we know that, you have to weigh it up, but it's helpful because it's something that comes out of the blue, that, doesn't it? It isn't anything that's is created or anything -- that is her, that's her kitchen. She had wanted to be a nurse since being at school, studied nursing at university, even did placements at the Countess of Chester Hospital. You may think that takes some commitment and hard work and did that because she wanted to care for children, for babies, and she has done over the years, hundreds, hundreds.
Important because it shows, or is one view of the type of person she is and important because it puts into perspective the very limited number of cases when we look at her and her life that we're dealing with in this case, undoubtedly important as they are to all the people involved with them.
But they have gone on alongside her care as an exemplary nurse with other children, which we say makes these allegations all the more unlikely. Various medical professionals spoke about what an excellent and caring and committed nurse Ms Letby was. Christopher Booth, I come to him because he's not identified as any particular friend of Ms Letby, I don't mean he's not a friend, but he's just one of the nurses. Straightforward, you may think, an objective assessment of a young woman he gave and he'd ben able to observe in a variety of situations for years and he told us on 23 January -- I asked him:
"Question: Weighing up her professional abilities, did you find her to be conscientious and excellent?
"Answer: Yes, very much so, yes.
"Question: By way of example, did you recall at the time of the week of the [Baby H] event she'd done an overtime shift?
"Answer: Yes, that's not unusual for us. She was very conscientious.
"Question: She was someone who was quite willing to work extra or have her shifts changed at the last minute, wasn't she?
"Answer: Yes.
"Question: Did you find her to be a hard worker and always very accommodating?
"Answer: Without a doubt, yes, very much so.
"Question: Did you find that she became upset with events that took place, as did others, when things went wrong?
"Answer: Definitely. I mean, it was a harrowing time and, yes, we all got upset and without doubt Lucy as well yes."
So we need to keep these things in mind. When there's a snapshot given to you of her being upbeat, maybe at the wrong moment after a death, and trying to be bright or make it sound positive in some way and getting it wrong, that's different, isn't it? That can be done. That doesn't make somebody automatically a murderer because they misjudge a situation like that, thought that is how that type of evidence has been used. But people get it wrong sometimes.
But the evidence of her being genuinely upset is apparent. That's not been drawn to your attention yet, but then this is the benefit of having speeches from both sides, isn't it? We've had evidence of her upset:
"Why does it happen to me?" I think Lucy Beebe found her sobbing about...
Christopher Booth: "Without doubt Lucy was upset too."
She was on the unit a lot and she dealt with a lot of the most poorly babies on the unit because of her flexibility, her age -- you can imagine her situation, because she was recently qualified and she was committed to her work. And one of the issues is how much she seemed to want to work with intensive care and that became a point of dispute sometimes. But you may appreciate there are all sorts of specialists in the medical services who may favour working in the more intensive situations, accident and emergency, things like that. That doesn't make them suspicious for wanting to do that. We say that Ms Letby is bound to be present when serious events unfold, and quite often, because she was young, keen, flexible and newly qualified to do IC work, intensive care, in a unit that was overstretched with a lot of high acuity cases.
And can I remind you, ladies and gentlemen, of the agreed evidence of [Nurse A] on this point? This was read to you and the prosecution have been keen to point out, time after time, the importance of agreed evidence, haven't they? You've heard about that, this is agreed so it's accepted then. This is their witness and she said this in a statement that was read to you:
"I also remember at the time we're talking about we had massive staffing issues where people were coming in and doing extra shifts. It was mainly Lucy that did a lot as she was one of only three band 5 nurses that had done the neonatal course at the time, Bernie Butterworth being the other and Shelley Tomlins. Lucy was young, living in halls in the doctors' residential, saving to buy a house. She was single, able to swap, willing and wanting to do extras, whereas Bernie was married, had a much more established life and didn't need the money, but not that she wasn't flexible too. It was mainly Lucy that did a lot as she was one of only three band 5 nurses."
That's important. That's agreed evidence from a prosecution witness that goes some way to explain, first of all, why she would be present as much as she was.
That's Lucy Letby, a person that she was as we're moving forwards through these events, and we ask you, please, to keep that in mind. We'll have a look at the social media evidence shortly because that's also an image of who and what she was and that's very different from the woman as she presents sitting in the dock now.
Before we move to that, the evidence of Eirian Powell. Do you remember Eirian Powell was the ward manager and she came right at the end of the case and was asked some questions about the end of all of this? Important perhaps not just because she gave an assessment of Lucy Letby but because she talked about the impact of coming off the unit and the accusations being made and the effect of that on Ms Letby, who she described as "an exceptionally good nurse". And you may think, if you cast your mind back to Eirian Powell, she's probably a pretty good judge of character. One of the benefits of the system is you can assess people you look at, you can weigh them up. She seemed, you many think, pretty astute and on it. She regarded Ms Letby as an exceptionally good nurse and she'd known her since she was a student, a long time.
And there's an issue, isn't there, that's developed, as to -- it's almost two issues. One of them is why was she upset and the other one is was she really upset or are you simply being mislead. Is that what's happening? Or was Ms Letby pretending to be upset? Eirian Powell described what happened when Lucy Letby moved to a non-clinical role and she agreed that she was very upset:
"She was a committed nurse who wanted to develop and she was removed from the unit for reasons she couldn't fathom."
We say that first of all was no act. That's not something that was put on. Quite a lot has been made that she put on being upset. We say that in no way is that right. Eirian Powell said she was very upset:
"She had a meeting with the deputy director of nursing Sian Williams in July 2016 and she was distraught."
And Eirian Powell said it was at that meeting, so quite early on, that it was suggested to Lucy Letby she was responsible for what had happened to the children. And this was something the prosecution asked her about in cross-examination. And when asked by the prosecution what it was Lucy Letby had been upset about, Eirian Powell's answer was very clear:
"She thought she caused the deaths of the children that were involved that were in the report that I'd actually compiled."
That was on 27 April this year. She thought she caused the deaths of the children, distraught. From Eirian Powell.
A number of matters come up here, which you'll have to consider, ladies and gentlemen. Certainly we say that is compelling evidence that Lucy Letby was genuinely upset. You'll of course ask yourselves: well, why is that? You'll weigh that up. But she genuinely was upset. It's not an act that's being put on which seems to have been suggested at points.
Ms Powell has no recollection of Ms Letby being told she couldn't mix with whoever she wanted to. That's something Lucy Letby had also said had been part of -- upsetting, the isolation from people on the unit.
But there is no doubt that she was very upset at that time. And you may think the most important factor to come out of this is the effect upon her and, in particular, that this is genuine distress because it's apparent, as the case has proceeded, that the prosecution do not really accept that.
The notes that you've looked at, and we don't need to go back to them, we've put them up, we know what they say, they're striking. We spent some time on those. But perhaps given where we've ended up in the evidence they have a particular relevance in that they demonstrate, don't they, beyond any question of a doubt, the anguish caused to Lucy Letby by what was happening? That's without a doubt.
So suggestions that in some way she sought to create a misleading impression as to being upset or the impact of this cannot be right. You've seen the notes, they are full of distress, self-recrimination, anguish. Nothing we say actually, given how much she writes, nothing with any specificity that comes close to what she is accused of. She may well have questioned herself. She may well have lost confidence in herself or blamed herself. But there's no getting away from the fact that the note, what might be called the prosecution's favourite note, is headed "Not good enough".
Now, "Not good enough". Who did she write that for? She didn't write it for us. She didn't write it for the police. She didn't write it for these proceedings. That's a note to herself, writing about herself, showing plainly how she feels, not for any other audience. So you can put some weight in that and they do show, even though this was -- issue was taken with this at the end, really, but they certainly do show a very distressed woman, someone who is in a terrible state of anguish, and who puts it down to, as it says, "not good enough".
And that is utterly consistent with what Eirian Powell says about how she was when she learned she was being accused of the type of things that bring her here now.
Misleading impression. I keep coming back to this because the way that that has been dismissed by the prosecution is indicative of the way material relating to Ms Letby that could assist her is automatically dismissed. We say it's not an act. She wasn't pretending to need antidepressants for years. She explained to you she went to the doctors and was given them. She wasn't pretending to be practically suicidal when she wrote those notes to herself. It's what they say. There's lot of them. The impact was immense.
The social media material which we looked at and the prosecution produced, they introduced to show a number of things in fact. First of all, to show that she was able to see friends from the unit who she said she couldn't see. You'll weigh that up, how she came to say that, what you make of that. But in fact they went very much further than that in cross-examination as to what they said that proved and I'm going to remind you of that shortly because what precisely are they meant to have shown a false impression of? What on earth do they show is a false impression? What? She dared to have a social life over the 2 years between coming off the unit and the arrest? Could we put up, actually, the display, please, Mr Murphy? You'll remember this, ladies and gentlemen. If we go to page 2, maybe, the next page, enlarge it a little bit. If we just go back to page 1 if we could, please. The images there, she's on holiday with her dad at the top, with friends further down. Thank you.
Just reminding you, if you look at this, if we look at the lower half, if you could enlarge that, please. These are the images. Certainly a couple of glasses of what looks like some sparkling wine there. You can take that down, please, for the time being, Mr Murphy.
You'll remember the questioning of her was in this way:
"Question: We don't need to go back through the social media stuff to show you out on the razz with your friends, do we?
"Answer: No.
"Question: You were having a good time, weren't you?
"Answer: Yeah, there were times in those years that I did have good times, yes.
"Question: Drinking fizz goes to the races?
"Answer: Yes.
"Question: Yes. You felt like this because you knew that you had killed and grievously injured these children?"
That's what was being said:
"You felt like this because you knew that you had killed and grievously injured these children."
You have seen those photos. They show somebody having a pretty conventional type of life, going on holiday with their mum and dad, a couple of pictures of a couple of drinks, out with friends some of the time. How is that a false impression? And how is that evidence of feeling like that because she knew she'd killed and grievously injured children? And you will appreciate in any event, members of the jury, that what you get on a picture like that will rarely show, or may not show, what is going on on the inside.
Let's go to page 26, please, of that material. These are the last pictures. I just want to hold in mind -- if you enlarge it a little bit, Mr Murphy, maybe the bottom half. Hold it in mind, as we think how these were meant to be used:
"You felt like this because you knew you'd killed and grievously injured those children."
If you want a better example of the way words are used in this case by the prosecution to say something that does not even begin to dovetail with the children, with the allegations regarding the children, you just have to look at this. This is the way it works.
Social life. Being with her cousin, godson, being with mum and dad, being with friends. That's it. That's it. Nothing. Nothing that is contrary to what she said, to what Eirian Powell described and the distress in those notes.
When you look at that picture and you look who's in the dock and how that all has been, you can see the effect of years of this and, when we come to look at her evidence later on, the way she was dealt with in cross-examination, you can bear that in mind, can't we? I'm going to ask to take this down if we could now, Mr Murphy, and we'll move on.
So pausing there, what do we take from that? We say it is very important to keep in mind the person that she was at the time these allegations are said to have taken place. Keep that in mind.
What about the documents the prosecution rely upon and items connected with those? I'm going to look at various documentary items, ladies and gentlemen, and actually I'm going to start with a few comments about the neonatal reviews that we have looked at. A great deal has been made of these, but in general there are a number of points I would like to make, words of caution really, and you can bear these in mind when you look at them. But it is important to be cautious because there are limits to what they show.
First of all, they only show actions for which notes or records are made. That's the first point. They will only show actions for which they're made and we know in fact there is plenty of activity by other nurses on that unit that won't necessarily be caught by just what is on the neonatal review. So when it's used to try to pin down exactly what someone was doing at a certain time, you can't really do that -- well, not usually. And we have to be careful how we use it with that in mind.
Secondly, save for computer-logged prescriptions, none of the timings, as we now know, are precise, or you certainly can't work on the basis they are. They may be, they may not be, but you can't just look at what it says on a note or record and say it is definitely precise. It may be, it may not be.
Third, generally, certainly very often, the time is entered retrospectively, after the event, isn't it, for most of these documents? So people are often having to recall as things have gone along what the timing is.
Fourth, it doesn't, the review, measure how long an activity takes. That's quite important because sometimes there's been an exercise of trying to pin down Ms Letby or maybe another nurse to: you were here then at that time doing a particular thing, by looking at the neonatal review. It doesn't do that. We know that most of what we are dealing with in this case covers a period of time. Doing cares might take some minutes, doing a feed might take 10 minutes, 5 minutes, 20 minutes. So the timings normally cover a range.
Fifth, it can't establish really that a particular nurse is in a particular location at a precise time. It can't, can it, when you think about it because these times are often approximate. It's a guide and we rely upon it some of the time as well, just as the prosecution do, but these are general observations with this.
Sixth, it doesn't show what someone is doing when there is no record and we then enter the territory sometimes of speculation and guesswork, don't we? There's two more points -- you might think it is never going to stop with points about the neonatal review, but we have two other points.
Seven. It shows that nurses generally may appear to be doing more than one task with one child at a time because of the way the timings are approximate and filled in retrospectively. These things are important as you add them up because very often Ms Letby is judged by standards that are very different from those applied to other nurses. And the observation's been made, "Look, you're here and you're here. It's a fraud, you're in two places at once. Fraud. You're up to no good, you're covering your tracks, you're cooking the notes" -- cooking the notes, cooking the records, you've heard that being said, creating plausible deniability. No, it's the same as other nurses have done and other nurses sometimes appear to be in two places at once. You've seen it. I'm not going to go through all of them because you have them, ladies and gentlemen.
And eighth and finally, we see that different nurses perform tasks for the same child on a shift. A child may be designated to a particular nurse but other nurses come in and assist, don't they, at various points? So all those occasions that it's treated as in some way sinister that Ms Letby should have involved herself in some way with a particular child is something that is aimed solely at Ms Letby. We'll find every other nurse doing the same thing across the whole of this case. For them, there is no presumption of guilt. For her, all too often, we say, there has been, and then it is interpreted in the most prejudicial way imaginable when it's no different from what others have been doing.
So that's the neonatal reviews. Next topic with documents, ladies and gentlemen, is messaging, the telephone calls. We say they're normal. They are normal. If you were to go along and take anybody's phone -- maybe not anyone's but some people's phones -- and look at all the messages and what they've been doing, who they've been talking to, what they've laughed at, what they've talked about, what have you, the things they're interested in, it's not going to be that different, it's really not going to be that different, including work conversations.
She was a young professional woman with a life, fairly obsessive about her job, but a lot of social activity and banter. Utterly normal.
If you read these messages outside this case, we suggest there is nothing which would ever make you think of the type of allegations that are being made now, nothing whatsoever. Only if you start with an assumption of guilt do they turn round in that way. Nothing odd about them.
The business about "going commando". I am just taking that because that was something she was criticised for, saying it's a lie that she wouldn't tell you what that meant. She may not know what it means, but I'll tell you what, that cross-examination, going commando, all of that, a young woman being cross-examined in that way, you may think humiliated in here, about something that took place at a time completely unrelated to what we were looking at, having a laugh about it -- she wasn't laughing. All right? In front of you. In front of everybody sitting in here. In front of her mum and dad. We say completely unnecessary.
That's the approach that's been taken to these messages. You saw that. Really undermining. You saw me get to my feet more than once to complain about things that happened, at one point to complain at the way she was being questioned was belittling and maybe overbearing.
That comment about, "Oh yeah, you ran out when your boyfriend [Dr A] came". Did you hear that? Your boyfriend, [Dr A]. That's not even their case, is it? Was [Dr A] brought here and said, "Were you Lucy Letby's boyfriend", or whatever the relationship was? So when reliance is placed upon Ms Letby's answers in cross-examination, we'll come back and look at this, but you may want to keep in mind the way that questioning went, when things are said about her life and the messages, you may want to wonder, what does it really prove on this and to what extent have they been used to undermine her in cross-examination? We complained then, we complain now.
You heard it. You watched it. You can assess what we say about it by reference to the evidence as you saw it being -- as it took place in front of you.
The messaging, we suggest, is unremarkable. There was a lot of contact between the nurses about all sorts of things and it is so important not to treat that as significant material that really wasn't significant at the time. Many people use their phones all the time and whenever and wherever they can. It has nothing to do with being bored or wanting to commit a murder because you're bored because you're on the phone at work. And literally, that is the way it has been dealt with in this case and you have seen it. Such an allegation, lightly made off the back of that:
"You were bored, so you went along and tried to kill somebody."
That one, by the way, based on the evidence with [Baby C] and what Sophie Ellis says. What Sophie Ellis says. When we come to it, I'll remind you if you don't remember, Sophie Ellis may say Lucy Letby went there, but that isn't what [Nurse B] said and it isn't what Melanie Taylor said in her statement to the police. This all seems ages ago now, but we'll come back to it when we look at [Baby C]. So much about what Sophie Ellis said on that event and you are yet to be reminded of where that was inconsistent with what [Nurse B] said and with what Mel Taylor said before she came to give evidence, but I'll remind you of it when we get there.
So yes, take a global view and look at everything. Do be careful not to apply artificial standards to this evidence or use it in ways that go far beyond what it can properly do for the circumstances.
If Ms Letby is to be criticised for using her phone at work, you will see, when you look through these sequences of events, others are doing it at work. [Nurse A] does it: tiles 224 to 283 on the [Baby G] 1 sequence. We've got examples of [Nurse E] doing it on the 14th and 15 June 2015. [Dr A], June 2016. Jennifer Jones-Key. Normal. What you may expect. We suggest, ladies and gentlemen, Ms Letby's messaging is no different from anyone else's: there is work, there is gossip, there are holidays, there's personal life, there's winning something on the Grand National, there's salsa dancing. At one point it was treated as if that was some terribly implicating fact: oh, you went salsa dancing. She went salsa dancing regularly. Moving house. Gossip. Normal things, if I could use that word. Nothing that's consistent with the allegations that are made now.
The Facebook searches. A matter for you to weigh up, ladies and gentlemen. Those of you who are familiar with social media will understand how people do look other people up for all sorts of reasons at all times of the day or the night. And it takes a moment, doesn't it, literally, to rattle through a large number of searches? It takes a moment. It may be no more than pressing a handful of keys with no greater significance.
So what do we see on Facebook searches with a balanced and broad assessment? The prosecution have identified particular messages on the sequence of events for a particular purpose, naturally and as they are entitled to, because they're presenting a case and drawing your attention to particular features.
You know, and it wouldn't surprise you to know, there's a good deal more Facebook activity than that. You'll find that summarised in the Facebook agreed facts which are in jury bundle 1, divider 9. I am not going to go there but you'll remember we went through those facts with one of the officers as I recall.
They focus on the period we're looking at in this case, around the times where the prosecution have picked out parents on the indictment. And you will see, you may agree, Ms Letby is a fairly busy user of Facebook generally and you may know from your experience people who are like that. All sorts of people. You see somebody rattle through searches. Think of somebody rattling through the searches, colleagues, friends, social contacts and parents in this case.
The prosecution draw your focus to the parents, naturally, and you may wonder which parents are there. If when we looked at this sequence of events with the Facebook searches the only searches we find, particularly with parents, were of parents in conjunction with this case and with these allegations that would be a pattern, wouldn't it? That would be a pattern consistent with the theory. We're here to test the theory. So we have to ask, what do we find? If we look at the searches, what we find, first of all, is that there are parents in relation to children on this indictment who are missing from those searches. That's the first part of what we say is a critical break in the pattern. That's why we scrutinise this. The prosecution are saying to Ms Letby that for some reason, looking at the parents of babies she has attacked satisfies her in some way and we can test that, can't we, because there are 17 babies in this case and people may be associated with them who we've heard of and we can see how she researched all of them. And in fact there are no searches for the [families of [Babies L & M], [Baby N], [Babies O, P & R] or [Baby Q]]. And you may ask: well, if the prosecution theory is correct, why should they be absent? Ms Letby's explanation is her interest is far more random than what is alleged in this case.
You'll weigh that up. But it's important to keep in mind what you would expect if the allegation is right. But equally important, ladies and gentlemen, we say, is those searches demonstrate also an interest in parents of babies not on this indictment and about whom no allegations are being made. You may recall that. To search for a parent of another child, something Ms Letby did. Not all different parents, some of those relate to the same parent, but certainly a number of parents of other children she looks for.
So obviously very many more parents or many more than just those of babies on the indictment, and parents other than those on the indictment, and we say that is important because it's important not to take and make more special one piece of evidence and then disregard others which balance it. And she is somebody who, it seems, looks up people very readily on Facebook when the thought crosses her mind.
So if we're having the full picture, there are parents from this indictment. That's right. You'll want to bear that in mind. That's what the prosecution rely upon. Of the parents on this indictment, a number are not searched for. We say that's significant. If what the prosecution allege is happening is really happening, why aren't they? And we also say doing searches for parents of children wholly unconnected, about whom there is no allegation appearing in the searches, which goes to show that she looks for parents on Facebook, whatever the reason, but it's not limited to these allegations. I think she used the expression "a pattern of behaviour". Perhaps it's just easier to say "something she does".
Here's something: between June 2015 and June 2016, 2,318 searches, and only 31 relate to parents on this indictment, and not all of the parents by any means. Now it might be if they only related to parents on this indictment where parents featured, that would be a different matter, but they don't and that's the point: they really don't.
You may also think what is significant are things that she has not searched for, given the allegations and Ms Letby being a keen user of social media. No suggestion she's looking up details on Google, or elsewhere, about air embolus or forcing in air or any fascination with what's alleged against her here. And you'd have to develop some pretty good knowledge, wouldn't you, to be able to do the sort of things that Dewi Evans and Sandie Bohin said were done. In the case of [Baby M], gauging air being put in into a 0.4-millimetre dead space, to travel down at 5.3 millimetres per hour, to be sufficiently slow to take 15 minutes to enter. This is something you'd have to research pretty carefully you may think. We say it's utterly unrealistic. But what is striking is the absence of that.
There's one matter that was pointed to by the prosecution, one message when [Nurse E] in fact was talking about haemophilia in the case of [Baby N] and Ms Letby said she'd have to google it. Remember, "I'll have to google that", and that was picked out, but actually there is no evidence she did, a suggestion she did, and the person who was actually talking about haemophilia was [Nurse E], not Lucy Letby.
So you may think that's interesting in a case where so much is put on what is found with the searches and things like that and she's meant to be so excited and fascinated by all of this, why is there nothing from the devices that are recovered that shows an interest in that in a case like this? What people search for on Google is a good indicator, you may think, of things that people are interested in or that have passed through their thoughts. Lucy Letby seems to have shown, we say, no interest in what is alleged or what she's said to be excited by. Nothing. We say the prosecution are right, that's fairly extraordinary, but it is consistent with them being wrong.
The diary. I know this is a bit of a gallop through these items, ladies and gentlemen, but they are there for you to look at. The diary. We saw some entries where some of the children's -- by no means of all of them -- some of the children's names featured in 2016. Ms Letby had two diaries: one in 2015 one in 2016, so covering both years on this indictment. If the diary entries are relevant, let's test the theory, purpose of a trial. If they're relevant, if the prosecution are right, why are there no entries in the 2015 diary for anything related to this? Nothing. You could miss that but that's the fact. The absence of -- the evidence or the lack of it.
Why not? Why is there not an entry every time things happen if that is what the entries are meant to link to? And there's nothing like it. In fact, when we come to diaries, there's no reference in them to [Baby A], no reference to [Baby B], no reference to [Baby C] or [Baby D], to [Babies E & F], [Baby G], [Baby I], [Baby H], [Baby J] or [Baby K]. So as far as theories go, that one doesn't really stand up to scrutiny, we suggest. Whatever her reasons for what she records, the point is it doesn't stand up to a scrutiny through the lens of what should be there if the prosecution are correct. Most of them aren't there.
Handover sheets and hospital documents. It's perhaps not difficult to see why Ms Letby would have handover sheets or make notes of them in the first place. That bit is relatively simple because they have that and that's what they do. The questions really are, we suggest, first of all, why did she retain a quantity of notes and pieces of paper? And secondly, depending whatever you make of her explanation, is that supportive of an intent to kill or something which is connected to that? Does that follow from what's alleged in this case? Now, of course those documents are significant or potentially significant. So you will want to look at those, we recognise that, we're not just here disagreeing with anything for the sake of disagreeing with it. We can see it's material you'll want to look at closely.
So far as Ms Letby is concerned, a starting point, as she maintains, is she didn't throw things away and, actually, when you look at this case and look at all the notes she had in handbags or bin bags, or whatever, that's pretty obvious. Some people accumulate paper.
She did and we say from the evidence it's plain she had a habit of retaining all sorts of pieces of paper and some people do that.
When she said "collecting paper", ladies and gentlemen, you understand she meant collecting it as in accumulating it, not like somebody collecting stamps or for any particular purpose. She said this back in May this year, a few weeks ago:
"I move paper round my whole life. I have difficulty throwing anything away and I've got copious amounts of paper, cards, notes, and these are no different. They're just pieces of paper that have been gathered and I've never done anything with them."
The prosecution were saying that she had paperwork with the names of dead children on it and Ms Letby explained there were lots of children: it's the paperwork she accumulated, not the content. That was the crux of that dispute between her and the prosecution and her case is that having done this, she really didn't appreciate how many she had or the detail of them. And you'll have to weigh that up and I don't know, I don't ask or wouldn't, what you think. But it's important to drill down to where we go if you reject what Lucy Letby said and if you think, "Oh, I think she's hung on to them for some other reason, I don't think it's random, whatever the reason I think she's hung on to this lot". She doesn't say that.
Where do we get to if that is your conclusion, if you think, "No, we don't think this is random"? Well, what matters then, ladies and gentlemen, we say, is whatever lies behind this, is this consistent with the prosecution theory that in some way these are connected with events on that unit that we're dealing with in this case? Do they prove that? The prosecution case is she has them as some type of reminder maybe of what happened. Is that the pattern? Is that what she hangs on to handover sheets for? Let's test that theory. What do we have? Well, the police officer, Colin Johnson, dealt with this. If Ms Letby had handover sheets and only handover sheets relating to babies who are the subject of this indictment, you may think that would be fairly significant. But she doesn't, does she? And this is crucial to keep in mind when you weigh up the evidence on the handover sheets. 257 handover sheets in total and 21 of them relate to babies on this indictment. A pretty small proportion. 236 don't. Most do not. So that's not a pattern, is it? In no way. Whatever's gone on, it's not linked to what's alleged here and it is not linked to the allegations that she faces. Less than 10% relate to that. The rest is utterly consistent with what she says about retaining paperwork and it's not the only paperwork she retained.
As it happens, there are no handover sheets for [Baby A] or [Baby C] or [Baby D]. [Redacted]. But again, if we're looking for consistent theories, why not? I'm not asking anyone to guess or speculate.
First of all we have a huge number of handover sheets, but by no means linked to what the prosecution theory is.
Secondly, we don't have sheets for all the babies on this indictment. And third, and this is something that we haven't looked at yet, but I'm going to ask you -- I'm not going to go through them with you now but ask you to look at this when you consider the handover sheets, if the prosecution theory is correct, the dates, the significant dates, should match the events we're looking at, shouldn't they, because that's the point? That's the point.
If it isn't that, then we're in the area of just making up any theory just to catch the defendant, to make it rope her in somehow. When you go through the notes you will see that very many of them are not linked to the dates of the offences on this indictment and that includes notes relating to the children on this indictment. They maybe dates around it, there may be some with the date of an event on it, but a number are not and you'll see that. It would be quite a process for me to go through them quickly now, but maybe nine or ten of them out of the ones you've got, out of the 21, are not what you might call target dates. That's a curious feature, isn't it, because they should be.
It's important, we submit, to look to see whether what we have is consistent with the allegation and, of course, you are going to look closely at what Ms Letby says in evidence, we know that, weighing up how or why people may say the things they do. But under all of that is the requirement, we submit, to show that these fit in some kind of consistent pattern, otherwise we are just dealing with the problem in this case which is taking what is found and then trying to fit it to a theory. And we submit the handover sheets are pieces of evidence you will want to look at and weigh up carefully. But ultimately, they don't do what they should do if the prosecution are right.
There's absolutely no way that there should be 236 that have nothing to do with allegations at all if they're linked to an interest in collecting material that relates to offences that she has committed because that is not the suggestion and that isn't what happened. But they do fit with somebody who, for whatever reason, hangs on to an awful lot of paper compulsively and the problems that creates for them later on.
A final point on documents, ladies and gentlemen, in a way, is the shredder. And she didn't, did she? That's the point. She didn't. You may think, what do you mean, she didn't? Well, Ms Letby, it seems, could certainly foresee the police may get involved, because do you remember on the note, the main note, the "not good enough" note, it's got "police investigation" written on it, so it's something she realised may be coming, perhaps not surprisingly given what was being said about her.
"Police investigation." Well, if these handover notes were as significant to her as the prosecution would have you believe and on her mind in that way and if she thought there was going to be a police investigation, you may well agree they wouldn't be there, would they? They wouldn't be there. And the fact that they are probably shows they are not on her mind because if they were with somebody in that situation, they'd be gone, and they weren't. And we say that also shows that she did not associate them with any particular wrongdoing.
Experts. The prosecution expert evidence is central to this case, ladies and gentlemen. Central. The medical evidence is central. Because in a unit where the babies are inevitably medically fragile, it is crucial to show beyond reasonable doubt, in whichever case you are looking at, that there is no medical cause where an assault is alleged. The evidence has to make you sure of that.
So three issues arise each time we say when we come to look at the specific counts in this case. Whether we can be sure, first of all, that there is no medical reason for deterioration or death. We need to know that, don't we? If there's a possibility that there is a medical reason for it, that's that, known or unidentified. We need to be sure that substandard performance is not responsible for what happened. And we need to be sure that the harmful act or acts alleged took place. Of course it follows we could be entirely unsure as to exactly what has happened in a particular given case.
Just because the prosecution say she's guilty does not mean she's guilty. That's why we're here. We may not be sure. The evidence may not make you sure. Well, that's fine. If it makes you unsure, that's not guilty. It's as simple as that. It has to make you sure to convict.
So the medical evidence is crucial because that is the bedrock to establishing, from the prosecution's point of view, with certainty that we are dealing with a harmful act or acts on every case.
So expert evidence. This is something, ladies and gentlemen, that his Lordship will give you legal directions on and anything I say on this topic is absolutely subject to his Lordship's direction. But it shouldn't be controversial if I deal with this in this way.
Experts, ladies and gentlemen, you assess as you assess other witnesses. The reason we have experts is they are there to assist you with areas of evidence that are outside common experience. When it's something that I or you or any of us can look and weigh up, like how do people use their telephones or what do we think about Facebook searches, we don't need expert evidence on that. There may be Facebook experts sitting out there even as I address you now to varying degrees, we can weigh that up. But when it comes down to things like, what is the cause, can we establish the cause of a child's collapse, then we need assistance from experts. That's why we have experts in this case. They don't decide the case, as the prosecution have said, and we agree on this, you look at all the evidence. That's the important thing, we absolutely agree: you have an overarching view that they don't give.
But you take their opinions into account, you don't have to accept them. You don't have to accept them if you think an expert has said something that is in any way, unsound, unsafe or unreliable. They don't have carte blanche to tell you what to think. That's not just me saying that, you'll receive directions on this, as I say, ladies and gentlemen. But there's certain features that are important and the expert evidence has to measure up to and I'll just summarise it.
The witness describing themselves as an expert must be an expert in the field they are talking about. You may want to keep a close eye on these things when we go back and look at the evidence of some of the expert witnesses in this case. The basic point of expert evidence is the expert is an expert on the topic. No point getting someone who's an expert orthopaedic surgeon and asking them to give evidence on brain surgery, whether they're a doctor or not. I've picked a simple one there that we can probably all agree on but perhaps you get the point and you know where I will be going with this: an expert needs to be an expert on what it is they're talking about.
That's something we suggest that was recognised by Professor Sally Kinsey, who was the professor of haematology, who was brought her by the prosecution on the topic of air embolus. Even though she was a professor of haematology and had been asked by the prosecution to come up with a report on how air embolus and skin discolouration worked, she acknowledged frankly when I cross-examined her -- we'll look at this tomorrow -- that she was doing this because she'd been asked to and that in fact she's not an expert on that particular topic. She was really clear about that in a way neither Dewi Evans or Sandie Bohin were prepared to accept for one moment. We'll look at how much expertise they have on that topic as we go along. But she's all the better as an expert, we submit to you, because she knows the limits of her expert knowledge and was ready to acknowledge them and she's a professor of haematology.
Secondly, ladies and gentlemen, there has to be a proper basis for why an expert gives you the opinion that she or he gives you. There has to be. You can't just say, "I'm an expert therefore".
That basis could be from their experience. We could have somebody as a doctor who treats the type of condition we're talking about all the time and can speak from personal experience about it. You won't find that on the key topics in this case -- and by key topics I'm talking about air embolus in particular. We don't have it.
It can be clinical experience. Their expertise could come from research. But as an expert, they have access to a broad field of solid, reliable scholarship that enables them to form an opinion.
Now, you'll need to keep that in mind, ladies and gentlemen, for example, when we consider Professor Owen Arthurs and how his research into what gas or what may be the causes of gas in great vessels came not from personal clinical experience, not from a series of well-established studies, principally it came from a survey he'd conducted of his own files from Great Ormond Street Hospital, a survey he conducted for this investigation and which was what's called peer-reviewed by nobody.
There's another paper he referred to which actually comes with a good deal more expertise, we'll come to that tomorrow, but that paper didn't help with the key question. It helped on the link between resuscitation and gas in the great vessels and that's a different issue.
You'll want to keep in mind the question of how good research is when, for example, Dr Bohin made claims to you, as she did, about how air embolus works in neonates, basing that upon studies that resolved around pigs and rabbits. Do you remember that? Pigs and rabbits, ladies and gentlemen, we got to. A menagerie. A menagerie of some sort but not a neonate, not a baby. Third and finally, in terms of the requirements of expert evidence, as I'm summarising it here, expert evidence should be objective and independent. It should be in effect neutral, just stating it as it is. An expert isn't here to be an advocate for one side or another. We've got advocates who are doing that, as you can see. That's not what an expert is required for. An expert should give their opinion impartially and not argue a case. They should be independent. So you'll want to ask, did Dewi Evans come here to give evidence independently or was he trying to argue a case? Sandie Bohin. Andreas Marnerides.
We'll look at it. If an expert doesn't give evidence that is independent and impartial that undermines it, doesn't it, because you're not actually getting the bare, neutral expert evidence, you are getting something that is, at the very least, varnished with advocacy and that's not what an expert is for. An expert should not be here to try to prop up, for example, an allegation by the way they use their theories. We'll return to that in due course, ladies and gentlemen.
The key things, in summary, therefore are that an expert should be properly qualified for what they're talking about to give that expert opinion, their opinion should have a sound basis, based on either personal experience or research. And the expert should be independent and objective, in no way biased, in no way an advocate for one side or the other.
If the expert, in your opinion, does not come up to that and has not done that, and can't be relied upon in that way, that is, we say, game over for their opinion on that topic.
My Lord, could I break there, please?
MR JUSTICE GOSS: Certainly. May I mention a matter that I raised with you?
MR MYERS: Yes, of course, my Lord.
MR JUSTICE GOSS: Just to explain to you. When we broke off at lunchtime, I raised with counsel, after you'd left the room, the difference between the chart on the nurses and clinicians who were present that came up on screen and the paper copies that we had, and I didn't want to set a hare running because I wondered if I'd got the wrong chart. I didn't want to interrupt Mr Myers.
I was looking to you to see if any of you were reacting but your faces were impervious, if I may say so, that you weren't quizzing it, but clearly you had the same chart I had, which has 24 events and not 25, which came up on the screen.
The situation is this, as you can see -- don't look for it know [sic] -- actually says "version 2" on the bottom. So this was a later version. I think the one that came up on the screen was version 1, so it was amended. That's right, isn't it, Mr Myers?
MR MYERS: As I understand, yes.
MR JUSTICE GOSS: We've worked it out. The point is, though, that there is one fewer event on this, but it wasn't one that was relevant to the point that Mr Myers was making, so the points are the same, so don't worry or entertain questions about why this has 24 and the one on screen had 25. It was obviously -- this is the agreed one that we have with 24 on it. So I hope that -- certainly it put my mind at rest, I hope it puts your minds at rest. Mr Myers may come back to this, I don't know, at some point.
MR MYERS: It has no bearing on the point, it's just a discrepancy between two versions that you have, ladies and gentlemen.
MR JUSTICE GOSS: There was an additional event on there that isn't on those charts now. All right? So there we are. I knew you were paying close attention because I was watching you, but, as I say, you didn't reveal the query, you didn't raise an eyebrow or anything like that. Thank you very much. We'll have a ten-minute break now for the final session this afternoon.
(3.01 pm)
(A short break)
(3.11 pm)
MR MYERS: Let's start with Dewi Evans, ladies and gentlemen. I don't want to come across as unduly sensitive on this topic now because the prosecution made a point, didn't they -- they made a point of criticising me for being unfair to Dr Evans because I missed a reference to vomiting fluid in his fourth report on [Baby Q] that he wrote before the trial? In the first three he didn't say that, but he did in the fourth, and I missed that, so that was a mistake, I agree. And for that -- for that -- it was said that I was being unfair. I did a bit of arithmetic.
I conducted 175 cross-examinations in this case, ladies and gentlemen. Seventeen of them have been with Dewi Evans. And I have dealt with approximately 80 reports and supplementary reports from him alone, other statements, loads more from other experts, and I've had to ask hundreds -- thousands -- of questions and I made that mistake. I apologise for that. That was unfair on Dewi Evans right at the end.
You'll decide if that's unfair. But you'll keep this in mind as well: there are a number of criticisms of Dewi Evans that we make, but during the course of this trial he has been criticised in his capacity as an expert witness by a judge of the Court of Appeal in scathing terms and the prosecution have not only ignored that but haven't addressed you about it and continue to embrace him as their witness, and he is their lead witness, in support of these allegations.
We say that is appalling. We say -- it's a matter for you -- he underpins the whole of the medical evidence in this case. The prosecution have not distanced themselves from him, he underpins it and we say he most definitely undermines it.
He is not a neonatologist. We say that matters.
Dr Babarao is a neonatologist. He was a prosecution witness who looked -- a witness who looked after [Baby K] from her transfer from the Countess of Chester to Arrowe Park after her birth. He explained what a neonatologist is. It's a sub-specialty of paediatrics -- this is on 28 February he explained this -- something which you have to follow a three-year training programme for and you specialise in the care for the most extreme and complex newborn babies, dealing with babies from about 22 weeks until they leave the neonatal unit.
Dewi Evans is not in that league, no matter how he boasts of his credentials, nor is any prosecution witness in this case, even though they are giving evidence on extremely complex matters relating to neonatal medicine and areas that are very hypothetical. Expertise, not very good, we say. Current knowledge and experience. He's not in current clinical practice, and hasn't been, for about 13 years. You may be able to recognise in a way that he didn't -- and actually Sandie Bohin wouldn't in support of him, we say, when I asked her about it, but wouldn't -- that being in clinical practice is important because it means you are doing it, you know what's going on at the moment, your knowledge is there, your experience is there. And that General Medical Council guideline we saw talks about the requirement to have "knowledge by current standards of the issue you're dealing with".
Dewi Evans told us about how he has lived through the evolution of medicine for 40 years. Fine. But we're not dealing with medicine from 40 years ago in this case. Medicine changes. That's why there's an evolution and a good deal of his experience is historic. He is, we say, a professional expert. Many experts are. But he is an expert at being an expert. There's nothing wrong with that, I suppose, ladies and gentlemen, but his focus is on that and no longer clinical practice.
This came up when he first gave evidence and I asked him about it on 14 October. And I said to him:
"The last topic I want to deal with this afternoon is this in terms of what your time is spent doing and what you do. Since 2009 being an expert witness has, in fact, been your chief activity, hasn't it."
To which he said:
"Yes, I suppose it actually has."
And we went over his training courses that he's been on as an expert witness. Ironically -- he's been on training courses by the way in 2017, 2019, 2020, 2021. That's fine, experts need to know what they're doing. I said to him:
"I see in March 2018, you've attended a course at the Royal Society of Medicine, which was called ironically 'Expert Witness Skills Master Class: How to Avoid the Pitfalls'."
"How to Avoid the Pitfalls."
We say he should have been taking a lot more notes at that class, ladies and gentlemen. I said:
"The pitfalls of giving expert evidence, what does that mean?"
And he said:
"Answer: Well, you know, how to make sure you present yourself properly, really.
"Question: You have expertise in writing reports?
"Answer: I do.
"Question: And expertise in coming to court and giving evidence?
"Answer: I do.
"Question: Would you agree with me if I suggest really that the main thing you are an expert in doing at the moment, Dr Evans, is being an expert?
"Answer: What does that mean?
"Question: As an expert witness?
"Answer: I think that's too flash for me. I would say that I'm here as a children's specialist with a huge experience of looking after small, sick babies and I'm pleased -- and my role here is to assist the court in sorting out some extremely challenging issues, so I do not call -- you know, today I have called myself an independent medical witness. I have not from this called myself an expert anything. I call myself an independent medical witness and that and my opinion is based not on being an expert, my opinion is based on being a doctor. Okay?"
So there you have it from the horse's mouth, so to speak, "not here as an expert". And we say that is evident:
"I'm not here -- my opinion is not based on being an expert, my opinion is based on being a doctor."
Sorry, that is no justification to come along and have a go. He's meant to be an expert. You may think, well, maybe he was just engaging in a bit of loose wordplay there. We say it reveals quite a lot. We don't want to take that out of context or be unfair to Dr Evans. You spent 6 months listening to him. You may think that frank assessment was more revealing than you might have imagined. And don't forget, ladies and gentlemen, his opinions and his reports are the starting point for all of the other experts in this case, they are, and particularly Sandie Bohin. But also and significantly, we say, Andreas Marnerides. They are not the only things he had access to, they're not the only thing Sandie Bohin had, but he has led the way with medical opinion in this investigation.
As for independence, we'll look at how his opinions were reached and developed as we go through the various counts on this indictment. But when Dewi Evans said, as I first asked him, that he has come to assist the court in some extremely challenging issues, as if called upon for the greater good, you may wish to remind yourselves of how he came to be involved in this case for someone who is meant to be independent, not partisan. How did he come to be involved in this? The truth, we say, is very different from the impression first created when he gave evidence. I'm going to look at what he said and then we're actually going to look at the piece of evidence that shows it happen. When I asked him about this when he was first answering questions about how he came to be involved, he told us he was brought into this case by the NCA, which you may know is the National Crime Agency. On 25 October last year I asked him:
"Question: When you were asked to review the cases and asked for your involvement in this investigation, you told us the NCA were the agency that contacted you. That's the National Crime Agency.
"Answer: Yes.
"Question: Did they provide you with the theory that deliberate harm had been done?
"Answer: No. By the time that I had -- the NCA got me involved in this case, I had prepared nearly 50 reports for other police authorities on issues on top of all my other stuff with the Family Court. So therefore I was someone who was known to them as someone who dealt with -- you know, with suspicious events.
"Question: Okay."
"At the time the NCA got me involved in this case."
Of course, that's what you'd expect maybe from an independent expert. They're brought in in that way and the clear impression was they came to him as an independent expert.
Now let's look at the piece of evidence that shows this happen. Can we put up D24, Mr Murphy? I showed this to Dr Evans.
From Dewi Evans, 21 May 2017, to the National Injuries Database that's connected to the NCA, by the way. We dealt with this:
"Dear Nick. I've received a lot of documents from [confidential details have been removed] police op but not the autopsy result... I'll liaise with DS directly. Should sort quickly once I get all the files."
Then this:
"Incidentally, I've read about the high death rate for babies in Chester and that the police are investigating. Do they have a paediatric/neonatal contact? I was involved in neonatal medicine for 30 years, including leading the intensive care set-up in Swansea. I've also prepared numerous neonatal cases where clinical negligence was alleged. If the Chester Police" -- (3.23 pm)
(Audio feed from court lost)
(3.24 pm)
MR JUSTICE GOSS: I think if Mr Murphy takes down the document and let's just go through a process of elimination.
(Pause)
If you haven't already done so, read to the end of the letter and it'll save time.
Everything is fine now.
MR MYERS: Just as I was getting to the key paragraph, ladies and gentlemen.
(3.24 pm)
(Audio feed from court lost)
(3.26 pm)
MR MYERS: Well, you will have seen, ladies and gentlemen -- I'll say it anyway -- Dr Evans talks about the case that's going on and then says this, and this is the case point:
"If the Chester Police have no one in mind, I'd be interested to help. Sounds like my kind of case.
I understand the Royal College has been involved, but from my experience the police are far better at investigating this sort of problem." Well, "I'd be interested to help, sounds like my kind of case". So ladies and gentlemen, first of all, he contacted them so he could get involved, which I described to him was touting for the job. He didn't like that very much, but we say that is exactly what that is. We say this matters.
His credibility right at the beginning of this with the impression he wanted to create of being -- (3.26 pm)
(Audio feed from court lost)
(3.27 pm)
MR MYERS: I suspect foul play! (Pause)
MR JUSTICE GOSS: Let's continue. If it just becomes insufferable, we'll have to have a break.
MR JOHNSON: One solution might be just to switch off the volume on these televisions. Maybe it's too simple.
MR JUSTICE GOSS: Yes, but that wasn't sort of normal feedback or interference. That was just bizarre to my mind.
MR MYERS: We'll see how we get on.
Stop-starting a lot here, ladies and gentlemen, but you'll understand this is actually a pretty fundamental point when we're starting with Dr Evans. His credibility as to how contact was made is affected, isn't it? His credibility generally. We say this is not a careless mistake. He went out of his way to make it sound as if he had been approached as almost a disinterested expert to come along and assist with some difficult cases. That isn't what happened. He asked to get involved, he touted to work on his kind of case.
So first of all, that was a misleading impression that he created. Secondly, from here on, he became the lead expert and has led the way in this investigation and throughout this trial and has set the issues. And we submit, having set them, Dr Bohin has given an opinion by reference to his, generally supporting him, and Dr Marnerides has relied heavily upon Dr Evans' clinical opinions.
That, what you have in front of you, you may agree, is not really consistent with being an independent witness and we say squarely he is a full member of this prosecution team from the very start. That's what this is. This is his. He got involved and he is not neutral, he is not independent, in no way, and his opinions have been formed with that in mind.
When we say he's been more interested in coming up with theories to support the allegations rather than simply reflect the facts, we say this is all consistent with that.
Knowledge of air embolus. Let me remind you about this. This background is significant, ladies and gentlemen, when we come to consider how the idea of air embolus is introduced into expert evidence. According to Dewi Evans, having made contact with the police, this is what happened next via the NCA:
"I drove up from Carmarthen, where I live, on a sunny day in July [that's July 2017] and said, 'I'll come and see you, I'll come and talk to you, I don't know whether I'm of any use to you, all I want you to do -- bring your case, bring me one case file just to give me a sort of idea of what's going on here'.
"Question: During the course of any discussion before you wrote the reports on [Baby A] and [Baby B], was the expression air embolus used at any point?
"Answer: No, no.
"Question: Not at all?
"Answer: The first person who thought about air embolus in this particular case as far as I know was me."
He said that on 25 October.
Well, there you have it. That's his evidence, "It was me". That's what he said.
But before you accept that, ladies and gentlemen, we ask you, please, to consider this chronology and keep in mind that Dewi Evans was speaking to the NCA and the police from 21 May 2017, which is the date of that email, but this is chronology.
From some time in 2016 at the latest, Ravi Jayaram was suggesting to colleagues at the Countess of Chester Hospital that what had happened on the unit involved air embolus. He was suggesting that from July 2016 -- and that, if you remember, is based upon that Lee and Tanswell paper that he'd dug out and we'll be coming to have a look at tomorrow when we start looking at the medical evidence.
I asked Ravi Jayaram and Stephen Brearey about contact with the police and from the questions we know the following -- and this comes from Dr Brearey, from 14 March. There were two meetings with the police when senior consultants and management first raised the suspicions they've described: a meeting on 27 April, Dr Brearey wasn't at that one; and then a meeting on 15 May, and he was there with Dr Jayaram and a couple of senior police officers, including the officer who became the senior officer in charge of this investigation. And at that meeting, Dr Jayaram raised concerns of air embolus with the police.
So the police certainly knew all about Ravi Jayaram's air embolus theory before the time that Dewi Evans contacted the NCA 6 days later. So it was in play then and they knew about it by the time he met with them some weeks after that.
Now, that is as far as we get there. But when it comes to assessing this, you know Dr Evans was very keen to get involved and that he'd be provided with information to set him on his way. And unless they met in perfect silence when he went to the police that sunny day in July 2017, you may think all of that is evidence, circumstantial evidence, from which you can pretty safely infer that the subject of air embolus will have come up because it is extraordinary to think that it would not.
You heard a lot about the supposed power of circumstantial evidence, ladies and gentlemen. You may think that constellation of features is pretty powerful and it is unbelievable, we submit, to you that he would not have known of suspicions of air embolus when there had been a series of meetings with those doctors, when he was keen to get involved, and it all comes together when he meets with the police afterwards. And he began to write his reports in due course, enthusiastically supported by Dr Bohin and also supported by Dr Marnerides.
That is Dewi Evans at the start of this process. But I want to deal next with something that happened during the course of this trial, because for months we had been cross-examining Dewi Evans and Dr Bohin, but Dewi Evans in particular as to his lack of independence and the way in which he was interested in constructing theories that supported an allegation rather than the facts -- and we levelled the same criticism at Dr Bohin too, who we say has done the same thing but with rather more subtlety.
But that's what we were saying about Dewi Evans and that's the concern because of his position with the expert evidence in this case. I would like you to take the agreed facts now, ladies and gentlemen, if you could find those. They're in jury bundle 1, divider 3.
There's material there that that you may want to bear in mind when dealing with Dewi Evans.
I am going to ask you, if you would, please, to turn to page 5, section 4. The agreed facts.
Page 5, section 4. I'm going to look at something we looked at earlier in evidence relating to the expert that, we submit, sets the lead in this case that others have followed. Let's read through this fact, fact 15 -- are you all there, "On 5 December 2022"? So whilst what we are dealing with in this trial was ongoing, whilst we were trying to get to the bottom of what Dr Evans was up to and others appearing as experts for the prosecution or another in particular, we get this:
"On 5 December 2022, Lord Justice Jackson gave a decision in writing on an application for permission to appeal in the Civil Division of the Court of Appeal. The application for permission to appeal related to a care order made in June 2021. The care order had been made in the Family Court. This care order was made in respect of two children who are unconnected with the children in the trial of Lucy Letby, the care order was unrelated to the case of Lucy Letby. The application for permission to appeal the care order was accompanied by a report from Dr Dewi Evans dated 14 April 2022. This report supported the position of the applicants, who were the parents of the children for whom the care order had been made. Lord Justice Jackson refused the application for permission to appeal against the care order. Included in his reasons for this refusal were the following matters, which he set down in writing:
"'First, this application challenges the findings of fact that led to the making of a care order in June 2021 in respect of L and S following the discovery in February 2020 that newborn S had sustained nine fractures caused on at least two separate occasions.
"'2. The applicants now argue that this court should hear an appeal and direct a retrial on the basis that the judge's findings were wrong, relying on a report from Dr Dewi Evans, a consultant paediatrician with no previous involvement in the proceedings, accompanied by certain research papers as showing that the injuries may have occurred accidentally due to S's exceptionally low vitamin D levels.
"'3. It is of great concern that the parents and the wider family might have been encouraged by this opinion to believe that the judge's findings may be revisited. The report is, I regret to say, worthless and offers no support whatever for this application for permission to appeal or indeed for any other application to re-open the findings.'"
And at 19:
"Lord Justice Jackson concluded his reasons as follows:
"'Finally, and of greatest concern, Dr Evans makes no effort to provide a balanced opinion. He either knows what his professional colleagues have concluded and disregards it or he has not taken steps to inform himself of their views. Either approach amounts to a breach of proper professional conduct. No attempt has been made to engage with the full range of medical information or the powerful contradictory indicators. Instead, the report has the hallmarks of an exercise in working out an explanation that exculpates the applicants. It ends with tendentious and partisan expressions of opinion that are outside Dr Evans' professional competence and have no place in a reputable expert report.'"
And then over the page, finally:
"'For all these reasons, no court would have accepted a report of this quality, even if it had been produced at the time of the trial.'"
A different matter, a different case, it's not what we're dealing with here, but members of the jury, you may agree, for an expert like this to receive that type of criticism from the Court of Appeal is, we say, appalling. It's a decision by an experienced senior judge in the Court of Appeal, one of the most senior judges in the country, and the language used by that judge in your paragraph 19, we say, resonates very uncomfortably with the behaviour of Dr Evans in this case.
I say Dr Evans. Be in no doubt, we say that goes on beyond him. His effect upon the expert evidence in this case is not limited to him and we'll look at that on the evidence as we go along.
The prosecution stand by him and support him, we submit, you've seen that, but those comments paint a disgraceful picture for an expert and yet here he is, relied upon.
Now, had we not been making those criticisms for months on end before that decision, it might be said, oh well, that's the defence seizing on something, although let's face it, it's pretty scathing. But it's what we'd been saying for months.
The reaction of Dewi Evans when this was put to him in evidence, you may or may not recall, but I cross-examined him on what Lord Justice Jackson had said and we got Dewi Evans speaking at length, maybe hoping it would stop the questioning, I don't know, but he tried to say -- and this is on 9 February -- that the Lord Justice of Appeal had got it wrong, that his report was worthless. He tried to say the Lord Justice of Appeal had got it wrong when he said that Dr Evans had made no effort to provide a balanced opinion and we say, having watched Dewi Evans in here for 7 months, you may agree, with respect, that Lord Justice Jackson had Dewi Evans down to a T.
He tried to say that the Lord Justice of Appeal had got it wrong when he said the report was biased or tendentious and he tried to say that Lord Justice Jackson had got it wrong when he said that, "Dewi Evans' report had all the hallmarks of working out an explanation". And we say, my goodness, you have seen a lot in this case, both from Dewi Evans and Sandie Bohin.
And in fact, you may not remember -- again, this is all on the date in January that we dealt with him -- he tried to say he hadn't written a report at all, this was just a letter to a solicitor, it wasn't a report.
I won't go through all of what we went through, where the word report is used in it, he set out his credentials and so on.
The worrying thing is that, this having happened, he wouldn't really accept the criticism at all. And we say this should worry anyone given his position in this case and his involvement and influence upon the findings of other experts and we say it is appalling that he tried to bluff his way through the criticism of a senior judge in this way.
We are critical of the prosecution who continue to rely upon him in this case. And please, we do say, don't think our criticism of Dewi Evans is drawn purely from that decision. Respectfully, that decision simply coincides with what we had spent months complaining about.
Sandie Bohin. Here to peer-review Dr Evans, we are told. We disagree entirely. We say that in reality she hasn't peer-reviewed in the sense of forming independent opinions. We say that what she has done repeatedly, and we said this to her as well, is to go as far as she feels she can to support Dewi Evans and the prosecution. Now she hasn't agreed with every bizarre utterance that Dr Evans made, perhaps she's too careful for that. But we say she's every bit as much a member of the prosecution team and we say her reports generally followed his lead.
In court, we pointed out, before coming in here to give evidence to you, she had the advantage on most occasions, not every occasion, of watching me question Dewi Evans first and then coming in and, in effect, giving a second opinion on the same topics. So she knew what was coming and she has worked, we say, to follow Dewi Evans where she can and to disagree with the defence, almost just in to support the theory that we say she is here to support in her evidence.
She complained that we -- I am accusing her of rubber-stamping Dr Evans' evidence. We have never said that, it's a good deal more subtle than that, but we do say that she has been doing her best to shore up the allegations as far as she feels she can.
We don't ask you to accept that because I'm saying it now, we ask you to accept that on the evidence you have seen and you have seen this for months. So actually I know, as you're listening to this, you'll have your own views as to whether I'm right or wrong in what I say, but we put our faith in the evidence and ask you to interpret it this way.
Finally, Dr Marnerides, who came once but at some length. That's not said critically, he had to, he dealt with a number of cases. Nothing like the length that Ms Letby gave evidence, nobody in this case has had to do that, nobody, or questioned like that or expected to remember things as she was or expected to jump around topics like she was or thrown documents at her in the course of cross-examination as she was, nobody, but Dr Marnerides -- we'll look at the issues in the cases that he dealt with, but a couple of points.
He's a pathologist, which means, of course, he looks at cause of death from the perspective of morphology and histopathology after death but, first, he's not a clinician. He's not a paediatrician, he's not a neonatologist or a radiologist and he recognised that. But that put some limits on his knowledge of what actually happens on the wards or in the course of medical practice. And he doesn't necessarily have the same knowledge or give his opinion with the knowledge of a radiologist.
For example, he didn't once refer to air in the body post-mortem as being possibly there as a result of resuscitation. We know it is. That's one of the main things that Dr Arthurs identified. It didn't feature with Dr Marnerides. So I respectfully ask you to be careful as to how much the experts know about one another's disciplines.
Secondly, he will only see conditions -- or his expert experience is in conditions that have resulted in death. That's his expertise. It's not in what happens in life. A lot of what we're looking at in this case turns on that. So he doesn't have that expertise. And third and finally, what he can do is to give us a snapshot, as he said, from the perspective of post-mortem evidence.
So although he gave us various opinions on cause of death, ladies and gentlemen, beyond that snapshot he is reliant on the evidence of others, and that was apparent. If you remember, he very frankly conceded, over and over again, he has relied on what clinicians have said. For example, when it came to [Baby D], he was ready to discount that even though she died with pneumonia, it wouldn't be of pneumonia, and the reason he said that was because he was taking what the clinicians had said about how well she was doing before the time of death.
We dispute that. We point out the fact that, save for one relatively brief period, she never breathed unaided, [Baby D] didn't. For 4 or 5 hours on one of the days, I think. Save for that she had to have assistance throughout. So it's a matter of some dispute we say. His principal contribution was to say that in each case he could find no natural or disease process to account for death. We don't accept that in the cases of [Baby C] or [Baby D] and we explored that with him. Save for the case of [Baby O] and the liver injury, which we will look at, in every other case what he was actually saying as to cause of death was that he couldn't say from the pathology what it was, but on the basis of his knowledge as a pathologist and the clinical reports, the expert reports he had seen, he agreed with them. In other words, from the pathology there was no other explanation.
He made a lot of reference to Dewi Evans and his reliance upon Dewi Evans, and if we seem to come back to Dewi Evans time after time, that is because he is at the heart of the medical evidence. It's too late in the day for anyone to seek to insulate the prosecution from that by suggesting that somehow he's not or there's lots of other people. You'll look at all the expert opinions, but he is the starting point and that goes for Dr Marnerides.
When on 29 March he was talking about the process in assessing [Baby D]'s case, he was asked by the prosecution:
"Question: I think so far as your paragraph 12 is concerned, you've reviewed the medical records which we have at tile 158."
Dr Marnerides said:
"Answer: I haven't reviewed the medical records.
"Question: I think you have reviewed them.
"Answer: I haven't reviewed them he said.
"Question: Sorry?
"Answer: I've extracted the information from the medical records and I state it in my reports because that's the job of the clinicians, to assess the medical records.
"Question: Yes?
"Answer: So I strictly followed my instructions, I did a pathology review. So this [talking about the clinical view on [Baby D]] is extracted from the report by Dr Evans that I received.
"Question: Yes, thank you.
"Answer: So I didn't go through the medical records.
"Question: No, of course not."
Well, the prosecution may have said "of course not", but you myself been surprised to discover how heavily what we get from Dr Marnerides is based upon Dr Evans' rendition of the records and his opinions. And time and again, he said that the pathology couldn't establish cause but given what the clinicians and the radiologists said, his view was that this was air embolus or air down the NGT and so on, given what those other clinicians had said. You know what we say about that, ladies and gentlemen.
My Lord, that takes me to the end of what I was going to deal with today.
MR JUSTICE GOSS: Right, thank you very much.
MR MYERS:: I'm actually at the limit of where I can get to today.
MR JUSTICE GOSS: Right. Five days is a long time and every 20 minutes or so counts. But there we are. Tomorrow morning then, members of the jury, 10.30. Mr Myers will continue his address to you. Please remember, as I'm sure you well do, your responsibilities. I'm not going to repeat them; I've said them so many times now. 10.30 tomorrow morning. Thank you very much.
(In the absence of the jury)
MR JUSTICE GOSS: Apparently, the equipment is now working satisfactorily and I think the clerk of the court is going to see if, with Mr Murphy's assistance, they can identify what the problem was.
MR MYERS: That would be helpful.
MR JUSTICE GOSS: It's unhelpful interrupting. Can I just mention two matters arising out of what you've said quite recently, Mr Myers? This is not by way of criticism, but I just want to give you notice of what I am going to say now in my summing-up in relation to these two matters that you've raised.
The first was to invite, which you're entitled to do, invite the jury to infer that Dr Evans had been told of the suspicion of an air embolus and therefore he was not being truthful about that. Now, first of all, there will have been full disclosure of all documents of instruction that were given to him. There has been an officer in the case who's been available to be asked questions about whether anything was said to Dr Evans about suspicions as to possible causes and should the jury not be -- or would there be any objection of my telling the jury that because that is a known fact? It's just that you've rather put it on the basis that there is this overwhelming circumstantial case for saying that Dr Evans was told that because that's how you put it.
MR MYERS:Yes. My Lord, it shouldn't come as a surprise. Your Lordship may not recall this, but when we were dealing with the evidence at the conclusion of the prosecution case -- both Mr Johnson and I dealt with this -- that the suggestion would be made, it may be this isn't foremost in your Lordship's recollection, which I well understand, but the suggestion would be made that at some point the police had conveyed to him knowledge that we're dealing with a suspicion of air embolus, but that the prosecution were not planning upon calling an officer for that question to be put to an officer on the basis that it will lead nowhere, no answer will be given to say that happened, and we were ready to do that.
But the important point is it's not something, first of all, that I've simply raised now unexpectedly. This is something that I've explained was a point we wished to make and it's important to say that it's something we wish to make, it was a choice by the prosecution that we did not take issue with that they were not going to call an officer to deal with that on the basis that we'd never get to the bottom of it, in effect, with that questioning. So I'd be very anxious that if any observation is made upon this, respectfully it certainly wasn't done in a way that suggested that I've raised something now that wasn't trailed before. I can understand if your Lordship thought that, it would seem surprising, but I certainly would make all effort not to raise something like that if it had never been identified.
MR JUSTICE GOSS: No, no, I'm not casting any aspersions and you did phrase it very carefully because you said orally he'd been told that and not suggested there was any documentary evidence or anything to indicate that that was the case. But I'll just confirm with Mr Johnson whether there's anything —
MR JOHNSON: Yes, as always I don't recall things quite exactly the same as my learned friend, but the gist of what he says is absolutely right. We did discuss it and I told him that my information was that Dr Evans certainly had not been told that and that there is no documentation that contradicts that.
MR JUSTICE GOSS: All right.
MR JOHNSON: So if an officer was called, what would happen would be that the officer would say, "In my hearing and presence Dr Evans was never given that information".
MR JUSTICE GOSS: Well, I won't delve deep into that and I won't make any comment about it, but I shall just point out what the -- refer to the point that's made and the evidence that there is in relation to it. All right.
The other thing is this, and it relates to Dr Bohin, where you made the comment about she had heard the great majority of your cross-examinations of Dr Evans and you essentially said that she therefore, when she gave her evidence, intentionally was adjusting her evidence to accommodate the evidence that Dr Evans had given.
MR MYERS: That's right, my Lord.
MR JUSTICE GOSS: The only point I'm going to say is that I propose to tell the jury the fact that she had heard the cross-examination of Dr Evans is entirely normal practice. That's what experts do, they hear all the evidence so that they are in a position to know what evidence has been given and there's nothing sinister in that. It's then a matter for the jury whether they think she tailored her evidence to accommodate the answers that Dr Evans gave in cross-examination. That's entirely a matter for them and I shall say to them, at least once if not more than once, that their assessment of the evidence of the respective experts is entirely for them.
MR MYERS: Of course, my Lord, I understand. I should say, again it may not be at the forefront of consideration, but I actually cross-examined her upon that issue and the fact that she'd been in court and had listened.
MR JUSTICE GOSS: But she denied it.
MR MYERS: She certainly agreed she'd been in court but denied any part in --
MR JUSTICE GOSS: But the only point I'm seeking to make is it's perfectly normal. It's not something untoward and that sort of a fast one was being pulled in this respect. I'm not making a huge issue about it, but I just didn't want you then, when you heard what I was saying, saying, "Well, why is he saying this or not saying that?"
MR MYERS: I'm grateful to your Lordship for giving me prior notice. I understand.
MR JUSTICE GOSS: You'll find you won't even notice it. Well, you will notice it, but I don't think they'll understand the significance of it.
MR JOHNSON: There is another point that arises out of my learned friend's submissions. I don't know whether he or your Lordship wants me to deal with it now.
MR JUSTICE GOSS: Well, you might as well, we've got time.
MR JOHNSON: There are two points. The first is that my learned friend said that Dr Evans is an expert in being an expert. Well, no, he's an expert medical witness. But the more significant point perhaps is this: my learned friend went on to say that:
"Dr Evans is not [and I insert the words 'a neonatologist' to give context to what was being said] no matter how he boasts of his credentials, nor is any prosecution witness in this case, even though they're giving evidence on extremely complex matters relating to neonatal medicine and areas that are very hypothetical."
Can I remind my learned friend of, first of all, my examination of Dr Bohin on 25 October at page 68, where she set out her expertise, and then when he cross-examined her on 26 October at page 10, where amongst other things, these questions and answers were given:
"Question: Dr Bohin, I'm going to ask you some questions on behalf of Ms Letby, some very general questions first, and then we're going to have a look at what you say about the two children you've reviewed. You began your professional career in terms of special -- as a paediatrician, didn't you?
"Answer: No, I was a neonatologist.
"Question: I'm not going to dispute you are a neonatologist..."
And then the questioning continued and then this question:
"Question: And you've been a consultant neonatologist during your professional life, haven't you?
"Answer: Yes."
And my learned friend then cross-examined her on the difference. The point is that the assertion's been made that there isn't a prosecution expert who is a neonatologist and not only did Dr Bohin assert that she was, but my learned friend accepted it.
MR MYERS: A moment, please, my Lord. What I said, I think with some care, and it's something -- I'm aware of Dr Bohin's position with reference to Dr Babarao and what he said and that there was no witness in that league in fact. I did not say that there was no neonatologist in fact. That's my recollection, I'm just looking for the note now: "Dr Evans is not in that league, no matter how he boasts of his credentials, nor is any prosecution witness in this case, even though they're giving evidence on extremely complex matters relating to neonatal medicine and areas that are very hypothetical."
That was drawing a comparison with Dr Babarao and that's at page 127 into 128, in fact, my Lord. If it's necessary --
MR JUSTICE GOSS: Well, I'll read out what I'm proposing to say to the jury so it'll be on the record, which you can look at when the hearing is over: "She is a member of the Royal College of Physicians and a fellow of the Royal College of Paediatrics and Child Health. Having qualified as a doctor in the mid-1980s, she trained as a neonatologist, a doctor who looks after small babies, when she was a senior registrar working at the University of Leicester University Hospitals. She worked there from 1996 until the end of 2008 as a consultant neonatologist. That was a large tertiary neonatal unit that covered 10,000 deliveries of babies and had about 600 admissions a year at that time. It covered all aspects of neonatology.
"In 2009 she moved to Guernsey in the Channel Islands and became a consultant paediatrician with neonates there. Latterly, she also worked at the University of Bristol Regional Intensive Care Unit for between 2 to 4 weeks a year, where she just does neonatal intensive care and high dependency and some transfers. She has written and contributed to research papers with Professor David Field and latterly contributed to chapters in books on neonatal respiratory function and on neonatal transport."
So if there's anything that's wrong there, please correct me before I deliver it.
MR MYERS: Not wrong.
MR JUSTICE GOSS: I'm not going to seek to tit-for-tat about anything that you said, all I'm going to identify for the jury is -- I shall try to deal with all the evidence in an entirely neutral fashion as to what the evidence is in relation to expertise, events that take place, records of events, et cetera, et cetera.
MR MYERS: We understand that, my Lord, thank you.
MR JUSTICE GOSS: There we are. Mr Myers, will someone want to go down?
MR MYERS: Yes, we'd be grateful if we could, my Lord.
MR JUSTICE GOSS: Right. Thank you very much.
(4.03 pm)
(The court adjourned until 10.30 am on Tuesday, 27 June 2023)
Tuesday, 27 June 2023
(10.30 am)
(In the presence of the jury)
Closing Speech by MR MYERS (continued)
MR MYERS: Good morning, ladies and gentlemen.
Count 1. [Baby A]. [Baby A] was born, ladies and gentlemen, on 7 June 2015 at 20.31 hours, 31 weeks and 2 days' gestation, the second of the twins; [Baby B] was the first. His weight was 1,660 grams. On 8 June, so a little under 24 hours later, at about 8.05, he was given a 10% dextrose infusion via the long line and at 20.26, or thereabouts, so about 20 minutes later, he collapsed. And sadly, he died at 20.58 that evening.
The experts, Dewi Evans and Sandie Bohin, say that an air embolus is the cause of his death and was the harm done. We start here, ladies and gentlemen, that in a case, the prosecution case, as heavily based on coincidence as this one is, we ask you, how about this for a set of coincidences: a baby collapses and dies, that baby is an intensive care premature neonate, very preterm, only 1 day old, so fragile.
That baby has been left without fluids for at least 4 hours because staff didn't have the time to feed him. Left with a long line in the wrong place because the registrar who put it there was too busy to correct it, with, we say, a heart rate and a respiratory rate where the respiratory rate is not in the normal range and the two together are not behaving as they should do, without a nurse dedicated to monitoring him, although the guidelines in a case like this indicate that there should be, and collapsing within minutes, really, of the line being used to put fluids through.
So we ask at the outset, is all of that just a coincidence? That's the first case we come to, ladies and gentlemen, and for all the attempts or efforts of the prosecution to dismiss the suggestion of problems or sub-optimal care at the Countess of Chester neonatal unit, we say straightaway, actually, we have sub-optimal care, we have inadequate staffing and we have a collapse and death in front of everyone, and when Lucy Letby had done no more than be there really for minutes, 20 or so minutes, and no suggestion on the evidence that she had done anything physically to [Baby A] at all.
The risk of sudden and serious deterioration in [Baby A]'s case is the same as that for other babies on this unit, and I'm not going to repeat this, you'll be pleased to hear, every time we turn to one of the children, although I will identify where there are particular features that stand out. But it's a fact that on a neonatal unit the babies are there for a reason: many are preterm or very preterm and some have significant problems in addition to that, and you have heard many witnesses describe how they are at risk of deterioration and how that can be sudden and serious. That has been the evidence from nursing staff in this trial over and over again -- and a good number of the doctors as well. That is why, or one of the reasons, it is so important for there to be careful treatment and monitoring by suitably trained and experienced staff.
So Mel Taylor was designated to look after both [Baby A] and [Baby B], both had UVCs, which makes them both intensive care babies. In fact, one of them with a UVC would take that over the limit, but they both did.
The prosecution have relied on the BAPM guidelines where they believe it will help them on the topic of band 4 nurses and stoma bags, and we'll look at that with [Baby J]. Not so keen, it seems, on the more fundamental issue of staffing members and intensive care, which is pretty basic. Those guidelines are there for a reason, ladies and gentlemen, and however anybody tries to justify this, by the afternoon of 8 June 2015 there should not have been just one nurse looking after [Baby A] and [Baby B].
If they'd had a nurse each, we could have confidence that the procedures regarding lines were done correctly and the monitoring was done correctly instead of having one nurse dealing with both and a doctor, David Harkness, who was stretched across multiple babies.
Warning signs. Before we come to fluids and lines, I'd like just to look at the observation chart at tile 28. So we'll put this one up. Thank you, Mr Murphy. There we are. You're familiar with these now, ladies and gentlemen.
Just take a look at that if you don't mind. Could we enlarge it so we can see the heart rate and the respiratory rate section, please. Thank you. We can see, if we're looking at 8 June, starting from 8 or 9 in the morning, I ask you just to look at where the respiratory rate is. You can see that.
Sandie Bohin, Dr Bohin, said it was stable and not escalating and not worrying. And we say, look, look at the evidence. This is one of the many examples when what is before your eyes is not what one or other or both of the prosecution experts will accept. We say, and you can look at the evidence, it isn't stable and it is escalating. And it doesn't matter that it pops up and down along the way, the direction is up throughout that day, right to the point of collapse, and Dr Bohin would not have that.
Now, this was the first chart you looked at, ladies and gentlemen, so it would have been more difficult for you to assess my questioning of her as to what that shows at that time, possibly, if you're not familiar with these charts. But you can consider what she says now and what you make of her refusal to acknowledge that.
Mel Taylor said there was nothing remarkable and she doesn't appear to have reacted to it in any way, and we ask or wonder how much attention she was giving to it because looking after two babies and, on the evidence, no doctor available immediately if she had wanted one leaves us wondering how close the attention was. What is the point of the yellow? It's there for a reason. If we just look at the foot of the chart there is a guideline there. Can you just go down to the notes, please, Mr Murphy. Can you see there, ladies and gentlemen?
"White: continue obs as per frequency. First yellow: action and repeat. Second yellow: escalate senior nursing practitioner or SHO." And we say that refers to the number of times something falls in the yellow.
In any event, it's in the yellow. Could we go back again to the first two bars, please, Mr Murphy. So that's the respirations. Now have a look at the heart rate. Does it move really at all? Given what you know about this case and what you've been told about heart rate and respiratory rates following one another, now what do you think when you look at that? I'm not asking you to become experts, I'm just asking you to think about what we have heard and what we have learned in this case.
When I questioned Dr Bohin about this on 26 October, she began by agreeing that heart rate should match respiratory rate, which we say is logical as well as medical. Then, as I went further, she then said, no, they didn't have to, which begs the question here why didn't they? We say what happened there, asking Dr Bohin about heart rate and respiratory rate not matching, shows two things.
First of all, that she wouldn't acknowledge what is obvious, they should have matched, and secondly, we say, there is a problem: the heart rate should rise and it didn't.
UVC and fluids. The umbilical venous catheter was in the wrong position, so [Baby A] was taken off fluids whilst he waited to have it properly positioned and he received no fluids or dextrose for at least 4 hours. And Dr Bohin, on 26 October, agreed this was sub-optimal. First case. First instance of acknowledged sub-optimal care from one of the experts, although we maintain there are more that would not be acknowledged.
That didn't change up to the point of collapse, the position of the long line. It is a risk, we say, if it is in the wrong place. David Harkness in evidence was satisfied that it was well placed and we say that is odd because that is not what the records indicate. It was not correctly sited and we can see that if we look, first of all, at the radiograph and then at the Dr Harkness' notes on the radiograph sticker. So could we look just at tile 156, which is the radiograph? Thank you.
It's the commentary, but this is 8 June 2015, 7.09. Can we go down, Mr Murphy, please. We have the description there and the last bit is what's significant:
"The tip of the left-sided peripheral long line is projected over the junction of the innominate vein and the superior vena cava."
And they meet up at the top there, the superior vena cava comes into the top of the heart. So that was the item identified there. If we look at what Dr Harkness put on his notes at tile 145, please, down at the bottom, the bottom part of the chart, please. You'll notice a couple of entries but it's the one on the right:
"X-ray review."
Time of X-ray, it's 19.09 on 8 June. If we look down:
"Long line position: superior vena cava."
Comments:
"Long line at right subclavian SVC... [as read]" Sorry, subclavian vein not vena cava, subclavian vein:
"... to be pulled back."
The subclavian vein is under the clavicle, the collarbone:
"... to be pulled back."
And across at 21.20, so this is after [Baby A] had sadly died, Dr Harkness puts down a reference about:
"Dealing with a long line in another patient with X-ray, so unable to action."
Can you see that? Meant to be pulled back, wasn't, because he was busy.
According to Dr Harkness, he said that the next day -- this is in evidence -- he chatted with his colleagues and they all decided it was perfectly placed. That was decided afterwards with his colleagues. You know what Dr Evans says about that and the readiness to admit fault, but we were told they decided it was perfectly placed and he said:
"It's exactly where we wanted it to be."
So that's a change, isn't it, from what we see on the records?
It seems Dr Bohin was in a mood for change too because in examination-in-chief, which, as you know now, if you didn't before, is when one party asks their own witnesses the questions, so examination-in-chief is when the prosecution speaks to their witness, she said nothing critical about the long line and she said it was in a safe position.
So I took her to her report that she had written back in November 2020 where she didn't say that and I put to her on 26 October what her report said on this issue and she had said:
"The X-ray showed the long lines have crossed the midline..."
Or "the long line" it should be, but it says:
"... the long lines have crossed the midline. It was not within the heart but it was not in the best position."
The best position is the optimal position. Just look at the language, what it means, not in the optimal position is therefore in a sub-optimal position. Her language: it was not in the best position.
She didn't mention that in her evidence until I took her there and, of course, that is why it was meant to be moved but couldn't be. I asked her about potential risks with a long line left too close to the heart and she said this:
"There is a BAPM recommendation about the care of long lines because of the risk of cardiac tamponade..."
Which you'll find from the glossary is a problem created when fluid accumulates in the sac encasing the heart. She said:
"If the tip touches the heart it can go through the heart muscle and cause a problem, so there are guidelines about that."
To be absolutely clear, she was confident in her evidence that it would have taken more time for a long line to move into proximity to the heart than this line had. So she said, there's no danger of this, it didn't have long enough.
Well, we note the facts which are that the line was too close to the heart, it was left there when it should have been moved, fluids were put down it, that very line, at about 8.05 and [Baby A] went into a fatal collapse within 20 minutes of that.
You may remember, for all the denials that the line had nothing to do with what happened, that we will not know and we will never know its final position or where the tip was because Dr Harkness removed it as soon as the collapse happened. So we won't know.
What about the events, how the collapse happened? And we ask rhetorically: how is this Lucy Letby? Handover had just taken place. Mel Taylor was sterile -- you know that means now gowned and gloved and ready to perform a procedure -- ready to set up the fluids, and Ms Letby helped her with that, and then she started her duties in front of Mel Taylor, right next or close to where David Harkness was attempting to put a line into another baby. So when did she do whatever it is she's meant to have done in that period of time? And how? Seriously, how? Next to Mel Taylor and David Harkness. How, when? We can guess, can't we? No idea.
Mel Taylor said she was making notes and could see her, so let's not start watering down the significance of that. So what did she do, get a syringe and inject some air in front of everybody? Nothing to support that suggestion, nothing consistent with that.
We got a little more evidence about the physical situation when Lucy Letby was cross-examined about this by the prosecution on 18 May. And she gave a clear account of the layout that wasn't challenged, no doubt because it's accurate, and this is what was said. The prosecution said:
"Question: Do you accept you were standing over [Baby A] at the time he collapsed?
"Answer: I accept I was within his cot space checking equipment, yes.
"Question: How close were you to him at the time he collapsed?
"Answer: I was in the close vicinity. I was checking equipment around his incubator.
"Question: Yes. Give us an idea in terms of this court. Could you reach out and touch him?
"Answer: I could touch the incubator, I'd have to open the doors to actually get into the baby, but yes I could touch the outside of the incubator.
"Question: Could you touch the lines?
"Answer: No.
"Question: Why not?
"Answer: The incubator was closed."
And that's where that went. And that's as far as we get. So actually, if that's right, if that's some physical impediment, so far as that suggestion is concerned, it doesn't appear anyone could have accessed this line without opening the incubator.
These are the kind of mechanical steps that would need to be taken for these attacks to take place that you would need to hear about in the evidence to see what it is that's meant to have happened and we don't have anything. We have allegations of harm bowled out there with no evidence and no facts in support and no idea what is meant to have happened.
You, we are sure, ladies and gentlemen, would regard that any collapse like this must be an awful event to deal with and, again, we don't overlook the tragedy of this. And you may agree you're not going to forget the most obvious details, particularly if you're involved in it. It might be different if you're on the periphery or elsewhere, but if you're involved. If you had set up the line and put the fluids down it, if that is what you had done and [Baby A] was your baby, and collapsed minutes later, you're not going to forget that, are you? That's going to stick in your memory.
But here we encounter something rather strange when we come to the evidence of who did what. It may not have seemed all that striking when we dealt with [Baby A] as the first baby but we say it foreshadows something that's a little more unsettling as we have proceeded, you make of this what you will, but as we have seen how some of the accounts of some of the nurses and doctors in this case who were involved in collapses and who might even be expected to be called to account have changed. It's just how it is.
It might be expected to be called to account if blame wasn't being directed at Ms Letby but we're going to see something here that's happened elsewhere in this case, how accounts change at times like this, not always but sometimes, we get glimpses.
Ms Letby has always said it was Melanie Taylor who set up the line and connected the fluids and she only helped because she had just come on.
Melanie Taylor in her evidence couldn't remember which way round it was, couldn't remember if she had connected the line and put the fluids down it, she told us, and for the reasons I say or suggest to you, you may think that's strange given that she was involved and must have thought about this afterwards and continued to think about it.
After all, if we're going to judge witnesses by the same consistent standards as you're asked to, that's the sort of thing that the prosecution would have absolutely slated Lucy Letby for not remembering, wouldn't they? Can you imagine if she had been the one to connect the line and they could show that and she'd been saying,
"I don't remember it", you know exactly how that would have gone. A different approach for their own witness though, isn't it? Okay for Melanie Taylor to forget crucial matters.
Now, if it was Mel Taylor alone who was giving evidence on this we'd be none the wiser. We'd have Lucy Letby saying Mel Taylor did it, we'd have Mel Taylor saying, "I can't remember". But we also had [Nurse A] who saw the whole thing and she was able to give lots of details about this event, but in evidence before you to the prosecution she said she didn't know who connected it either. That's where this began in her evidence. She said, "I don't know who connected it", back on 24 October.
But when it came to my questioning, I reminded her that she'd been interviewed by the police in January 2018 years ago and I showed her, that process we went through where the witness is reminded of their evidence on the screen, and I showed her a statement and what she said to the police and asked again if she could help us with who had connected the fluids. You know what the answer was? Looking at what she'd said back in 2018:
"It appears then that I was able to say it was Mel that done it."
That's interesting, isn't it? [Nurse A] was able to say a good deal about this incident, including, later on, adding details about a rash to [Baby A] that she didn't give at the time.
We'll come to that. How did she come to miss that crucial detail, about who connected the line, how did they come to miss that to you when that's what she had said to the police in 2018? How did she come to leave that out? How on earth did Mel Taylor forget?
Well, Mel Taylor connected the line, ran the fluids down it, and 20 minutes later [Baby A] collapsed and we say that, on this evidence so far, there is absolutely no basis to find Ms Letby guilty of any offence against [Baby A], nor is there any clear evidence of any harm, which you have to be sure of. And it wouldn't be fair to convict her by just lumping everything together and saying, well, it must be her because she was there. But it doesn't end there, does it, because this count, like most of the others, is based firmly on the opinions of the experts that this is an air embolus and then you're expected to fill in the details and go, introduced by Lucy Letby because she was there. That's how it works.
So it was an air embolus. So we're going to look, ladies and gentlemen, at this point, at how this air embolus theory works in this case because it arises for the first time in the case of [Baby A] and is then relied upon in various forms after that. So I'm going to step out of [Baby A]'s case for a moment, if we could, and look at this theory. It's detailed stuff, I don't know about you, but where I'm standing, as it's been earlier, it's roasting in here, you may be very hot too, I don't know. It is hot, yes.
I'm going to ask you, as you have been doing, to listen as closely as you can. I know it's detailed. But this is meant to be reliable, scientific, medical theory underpinning the most serious allegations. So what is the overarching theory of air embolus in this case? Ten or 15 minutes and then we'll get back to the actual facts with [Baby A]. Well, at the heart of it are Dr Evans and Dr Bohin. They're the ones, we say, pushing this with the prosecution, of course, who rely upon them. So let's look at them. Neither of them has clinical experience in identifying or treating air embolus, so they're not experts on that basis. Both of them could give an account of some time in their experience when somebody in hospital where they worked had one. That doesn't make you an expert. Neither of them are experts on that basis.
Both of them rely principally upon research, but this isn't a broad body of research, is it? It's quite clear they rely principally upon that article in a paper written by Lee and Tanswell over 30 years ago. That is the key piece of research they rely upon.
I asked them both at an early stage of their evidence what clinical features are used to support a diagnosis of air embolus. And I did that, ladies and gentlemen, so we could have something consistent to measure the cases against as we went through the evidence from that point on. That's why I asked them that, so we could try to pin down how do you identify an air embolus.
And the factors we received at the earliest stages were these. First of all, the presence of a IV cannula. That was from Dr Evans. Secondly, a sudden and unexpected collapse; they both said that. Third, unusual skin discolouration. And be in no doubt, ladies and gentlemen, and you heard and saw this, both began -- began -- by relying on that very specific description in that paper by Lee and Tanswell.
Fourth, the presence of air in the great vessels. Both of them cited that and are relying upon findings and opinions from Professor Arthurs, which we'll come to.
And then Dr Evans also at the outset said resuscitation is unsuccessful. They may have given different weight to different factors, but those were the five factors we were dealing with at the beginning. We will be looking at these. But apart from there having to be an intravenous entry point, we say not one of those criteria has been applied consistently by either of those witnesses across the cases under consideration in this trial, not one. And they have chopped and changed them as much as required to fit the available evidence. That is a criticism we have made of both of them from the outset and you can judge that criticism by what you witnessed in the evidence and what we say were the extraordinary contortions they went through to try to fit the evidence into that theory. My word, it changed, we say.
I'm going to remind you, if you can endure it, of that description in that paper again because the prosecution addressing you last week in closing complained about what they described as the defence fixation with "a single description from a single case". Well, that's not our fault. It's not our fixation. We are not the ones who brought this up. It's from their witnesses that this is the key guideline to discolouration in cases of air embolus. All we have done is taken that and then shown how inconsistent that is.
Just to remind you, ladies and gentlemen, we find it at page 24946, Mr Murphy. It's the second page of this paper. It's actually got a bit of highlighting on. That's not ours.
You will remember in this study, 53 cases were looked at. In about five out of 53 the researchers, or rather the people writing the study, found discolouration and in one of them there was a description of a rash that is relied upon in this case in particular. Here it is. They list things associated with air embolus and in the middle of this article:
"Blanching and migrating areas of cutaneous pallor, [so areas on the skin] were noted in several cases and in one of our own cases we noted bright pink vessels against a generally cyanosed cutaneous background."
So a bluish skin background, bright pink vessels in one in particular, and some moving. Not a lot of detail there, but some moving it's put in several cases. If we pull out and look at the table, just above that, you can see there, ladies and gentlemen,
"Cutaneous signs", which is what we're talking about, is in 11% of those 53 cases, which is why we know it's five or six of the 53 cases. There you have it. That's it. That is it.
So it's not the most significant feature associated with air embolus on the research. It's in five or six cases out of 53. But it's a very specific description there. Only one case with that picture of the red vessels and the cyanosed background. We say, as a basis for convicting someone for murder or murders, or murders and attempted murders, it is tenuous in the extreme. It can't even be said, ladies and gentlemen, that the clinical circumstances of the babies in that study reflect those of the relevant babies in this case. We don't know to what extent this piece of research, plucked from 1989, is directly applicable to this case, save that Dr Evans, Dr Bohin and others have made reference to it. It didn't come from us, not our fixation.
That's it. We can take that down, please, Mr Murphy. Thank you.
That, we say, meagre piece of research has carried us into pure guesswork at times in this case and the way the experts have changed their ground on it you can assess, but we'll remind you as we go through it. Now, Professor Kinsey. This is connected, so following on with the quality of scientific evidence, how strong is it, ladies and gentlemen -- or rather scientific theory. Maybe, we say, recognising how lacking in expert quality the evidence of Dewi Evans and Sandie Bohin is on this topic, the prosecution attempted to drum up support from Sally Kinsey, who is a professor of haematology. And you'll remember her, I'm sure, if only because you'll remember all the diagrams that were put up and the discussion about ping-pong balls to describe how oxygen is carried by haemoglobin and it goes round the body.
She is a professor of haematology, but she's not, as she frankly conceded in cross-examination, an expert on air embolus. And she said the following things in answer to my questions on 29 November. She agreed she's never seen this phenomenon herself, although she's read about it in medical literature. She said air embolus does not feature in her expertise. She agreed that the diagrams and explanations adduced by the prosecution that dealt with circulation were standard images of how circulation and gas exchange work, they are of general application and not specific to air embolus.
She said that a haematologist is not the specialist who would deal with air embolus; she's the one they had. She said she was only here talking about air embolus because she had been asked to. Literally said that:
"I'm not an expert on it but I've been asked to, I'll have a go."
Give us something. She said there is little in the medical literature regarding cutaneous features of air embolus. She referred to Lee and Tanswell, with that particular description, and she also referred to a paper by an author called Garcia that dealt, make a note of this, with bubbles found in the blood of overweight adult deep-sea divers as a result of decompression. This is before we get to the cats and the dogs and the rabbits. This is overweight adult deep-sea divers as a result of decompression, the bends in other words, something completely different.
We know this is the basis of her research because of the cross-examination. And she agreed that's no basis for drawing a consistent link between exogenously introduced air and skin discolouration. She agreed that. And that, ladies and gentlemen, is in fact the extent of where we get to with her as an expert on air embolus.
What did become apparent was that she had relied upon Dewi Evans and Sandie Bohin in what she said about air embolus, which we say, frankly, was a big mistake and it illustrates the circular way in which the prosecution evidence has fed upon itself amongst the experts in this case and you have seen that elsewhere. You saw it when we came to Dr Marnerides and the extent to which he relied upon material that was given to him and it feeds back into the basis for his conclusions. It's a kind of self-perpetuating cycle once the theory of air embolus is introduced into this case. We say it's very difficult to actually find evidence of an air embolus being introduced but you can be in no doubt as to the effect of the theory being introduced into it and feeding itself through the experts.
In particular, she told you, she was struck -- just perhaps think about this -- by how closely the description by Ravi Jayaram had matched the description in the Lee and Tanswell paper, which is the one and only description in this case of that bright pink vessels and a generally cyanosed background. She was struck by how it matched it but then we got this: she'd thought that what Dr Jayaram had said had come from his clinical notes. Right? She was struck by how much his description matched that article and was struck by it in the circumstances where she thought it came from his clinical notes; cross-examination, 29 November, page 85, lines 22 to 25.
I went through that with her and you may have noticed her reaction, it's a long time ago, when it was pointed out to her that he didn't actually say that in the clinical notes. Ladies and gentlemen, you'll remember, he said nothing. Nothing. We're coming to that shortly. We suggest she was visibly taken aback by that and, we suggest, became increasingly uncomfortable with what she'd been invited to do by way of giving expert evidence from that point onwards.
How this material feeds itself back into this case over and over again. You go back to the clinical notes on that first incident, and we're going to go and look at them in a minute, and you see if you can find any description in them. You won't. On [Baby A] you won't. But at least Professor Kinsey was ready to acknowledge her limited knowledge and ready to concede she was no expert.
So comparisons on discolourations, ladies and gentlemen, we'll look at skin discolouration as we go along, but in general there are a number of problems with trying to make comparisons in this case. We say this applies generally.
First of all, this is across this case, there are many causes of discolouration in a baby. We're confident you'll understand that you can't just use any discolouration, however striking, and then say, air embolus. We began this case with a very specific description. Not our fixation, theirs, the experts.
Secondly, we don't have a precise record of any of the skin discolourations in this case, by which I mean a photograph, something we can actually look at and compare. We have nothing to assess and compare the masses of descriptions, so we can see if there's any uniformity with objectivity. We have individual descriptions but they vary a good deal even when talking about the same baby.
Third, the descriptions don't just vary between different witnesses. You have seen individual witnesses give different descriptions at different times or none at all. So we say this is no basis for trying to compare or say we're talking about the same thing.
Fourth, sometimes these descriptions have come months or years after the things they are said to describe and after the people who had given the descriptions have all spent, or many of them have spent, time discussing this, pooling descriptions and recollections and, you've heard this in the evidence, and I'll remind you of some of it, listening to other people's descriptions, goodness knows when in the context of what we're dealing with here. So the dangers of recollection being contaminated or influenced are obvious.
Many causes of discolouration, no precise record by which we can look at these and compare them, changes between individuals describing them, changes within individuals' own accounts describing them, and everybody talking about them. That doesn't, by the way, prove there must be something, which is one of the lines that was taken: oh, they're all talking about it. That doesn't. It doesn't prove it's an air embolus.
Now, the second fact, an unexpected and sudden collapse. That's how the witnesses put this at the start of the trial. It's two things. As for unexpected, ladies and gentlemen, that's something to weigh up in each case. We say that in general any of these neonates had the medical potential to deteriorate suddenly and even dramatically, and we base that on the evidence of the witnesses.
In some cases we say the babies' medical conditions means there is no surprise there was a collapse. For example, we say that [Baby D] with pneumonia, who had persistent difficulties in breathing without assistance, comes into that category. And then sudden. Sudden collapse. We would say rapid collapse. At the beginning of his evidence Dr Evans said it would take about 1 to 2 minutes for an air embolus to take an effect after being introduced. That is very rapid. It's bound to be, isn't it? It gets into the bloodstream of a baby.
It's going to be important, ladies and gentlemen, to keep that in mind when we look at how realistic it is to say Lucy Letby has injected air because time after time she is nowhere near to events at the time this particular mechanism is said to have been done. That isn't good luck or she's fortunate or she's somehow planned it, it just doesn't fit. And it had led to some extraordinary contortions in explanations from the experts as to how this could be done, I'll remind you. The third matter, resuscitation being unsuccessful.
That was something Dr Evans stressed as an identifying feature. And that is consistent, isn't it, ladies and gentlemen, it's consistent with what you would expect of an air embolus and what we know for that matter. And what you'd expect if someone is -- it's a terrible thing to say, but if someone is trying to kill babies with it. If someone is intending to kill babies, you would expect it will be unsuccessful resuscitation. Only four of the 53 infants in the Lee and Tanswell paper survived the event.
Now, the number of times air embolus is alleged in this case does not make sense, we say, when you consider that against the almost inevitably lethal outcome of it, given how often that doesn't happen here. You weren't given much information on how air embolus is meant to cause collapse or death. I did ask, ladies and gentlemen, Dr Marnerides, the pathologist, and either he couldn't say or he wouldn't say, but he just refused to give an explanation and said he is the pathologist, not a clinician. He couldn't tell you how it works, although he still gave evidence about it. We say not a very promising start if the prosecution pathologist is making pronouncements about a mechanism he's unable to tell us about.
In fact, Sandie Bohin said that if air gets into the veins it can end up in the right side of the heart and it causes circulatory collapse, it creates in effect a gas lock. So a bit of the heart where the air is meant to go out to the lungs, it blocks it there and it can't go through. That's one thing she described, the blocking of the circulation. It all sounds probably -- it may or may not sound technical, it sounds technical to me, but these things may matter.
The air is 78% nitrogen, it doesn't just go. That's why divers get the bends. It doesn't just vanish. You don't just get 78%, something with 78% oxygen (sic), we say, that causes a blockage and then it just goes. That's why it is so lethal. It's important because it means that if it's interfering with circulation and causing a collapse, it is static, it's a blockage, and that should mean, we say, it should or could be visible on an X-ray taken at the time, including an X-ray in life if we begin to out all of this together. As you have been told, you can take the view across all this evidence in assessing the experts.
It's also important, isn't it, because if air embolus is lethal and gets into the right side of the heart and block the circulation, that's where you would expect to find it on a photograph post-mortem, surely. You won't find air in the heart on one post-mortem photograph in this case.
So as to the suggestion that inability to resuscitate proves air embolus or is diagnostic, ladies and gentlemen, there are many circumstances, sadly, when resuscitation may be unsuccessful. One of them may be air embolus, but you can't put this into reverse and say because it was unsuccessful therefore it is an air embolus. That's back to front.
On the evidence in this case, as you've seen, the idea that air embolus or the theory that air embolus is something from which there can be no resuscitation cannot be supported because it then changes. It's just changed by Dr Evans in particular when we have a baby where there is resuscitation, jettison that bit of theory, press on with a new explanation. Discolouration. We looked at that. Unexpected and sudden. We've looked at that. Unsuccessful resuscitation. We've looked at that.
What about air in the great vessels, which is the fourth key aspect that's relied upon? We've had evidence from Professor Arthurs, Professor Owen Arthurs, ladies and gentlemen. It's accepted that air in the great vessels, the aorta or the vena cava, doesn't of itself diagnose a gas embolus. He recognises that, it doesn't do that, it might be but it could be post-mortem gas, it could be gas which occurs after resuscitation. Post-mortem gas occurs naturally and very swiftly after death and resuscitation applies, as it happens, to every baby in this case where it's alleged they died of an air embolus and we have those radiographs.
Let's look a little bit more at this though. Owen Arthurs began saying it was unusual to find this air in the great vessel of a neonate. It sounded promising but we did look at the research behind that, didn't we? Professor Arthurs was not happy that I was criticising his research, you may have detected, but we are defending this lady on charges of murder and not here to compliment a prosecution expert on a study that was not published, it's not in published research, it's not been peer-reviewed -- this is what should normally happen with solid expert evidence. We can't say it's based on babies of the same extreme prematurity or the same circumstances as these and there had been no control of the various variables. It's a tiny pool of samples.
Professor Arthurs found 38 images to work with and of them he found eight with post-mortem gas, although he said that doesn't necessarily apply to this case. But "unusual" means post-mortem gas in 25% of the cases based on that research. We say that's hardly unusual, first of all.
But most crucially, really, when it comes to this point, he came on to regard very readily that the strongest link between gas in the great vessels after death and babies is where resuscitation had been performed, and you heard that. That's actually the strongest link and that's in properly performed and published research with other experts, and that applies to [Baby A] and that applies to [Baby D] and that applies to [Baby O]. That is the common feature. That's it actually. And it sits squarely in quality research, as in published with other researches, by Professor Arthurs. We don't need to resort to air embolus, the evidence of it being air embolus is not strong and it isn't the most powerful connection.
But we can go further, can't we, actually? Because we know, ladies and gentlemen, you know, what an air embolus actually looks like. You know that because of questions that we asked Professor Arthurs and items that we showed to him and he dealt with this. Do you remember the blood vessels, as tubes, coming out of them all over the place, like a tree, really, and if the heart is beating then the blood will go through those vessels and air can go throughout that system. Owen Arthurs gave the example of dye being put into the bloodstream so you can see the circulation and the same goes for air.
We have an image of air embolus on that article by Lee and Tanswell, and we looked at it, at D16, please, Mr Murphy, so could we put that up. This is an air embolus. This comes from the Lee and Tanswell article. It was that image on the top right-hand corner of the page which we have enlarged and put into a format that we can see clearly here.
Take a good look, ladies and gentlemen, because surely the obvious thing in this case, where there are radiographs and alleged air embolus, is to make a comparison with what we know an air embolus looks like. And you know what, that doesn't seem to have occurred to the prosecution or one of their experts until we did this. Or if it occurred to them, they didn't do it. Here it is, that's what it looks like. That shouldn't surprise you, that's what you'd expect. That's what an undoubted air embolus looks like and it's nothing like what we have in this case.
We also saw, as it happens, an air embolus on [Baby G] from when she had recently been born at Arrowe Park Hospital. We saw that at page 8139 of the exhibits and we showed this to Professor Arthurs. Page 8139. Now we know what we're looking for, you can probably see it anyway, even if we didn't have to identify it with Professor Arthurs. But you can see, as it appears on our image on the left-hand side, probably the right-hand side of the baby, you can see where the tube has gone in and you can see some loops, dark loops, and that's the air embolus in the liver area. Air in the liver, looking nothing like the images in this case, although a little bit more like the image in the Lee and Tanswell paper.
As Owen Arthurs explained on 3 February, what we have is a misplaced -- just ponder this -- a misplaced UVC, so that air has gone into the liver and caused a tree-like pattern due to the inappropriate positioning of the UVC. He accepted this was an air embolus from a connected -- where there'd been a wrongly connected or wrongly positioned UVC too low in the liver. It was there at this point, we looked at it, and it was there 45 minutes later.
This is in [Baby G] in hospital, her heart beating, keep this in mind when it's suggested you can't see an air embolus when someone's heart is beating. You can see this one.
Forty-five minutes later, it's still there at page 8141. Just go to the next reference, 8141, please, Mr Murphy. There it is still. These are in sequence. If you go to the exhibits, you don't have the exhibits in the numbers but we can follow them through and we went through this with Professor Arthurs.
This has a real significance in this case. We can see from Lee and Tanswell what an air embolus is meant to look like, and it really shouldn't come as any surprise and it's not just two lines of air static in one or more great vessels, it's a tree-like pattern because it's got there after the heart was beating air round the system together with the blood. That's how it works. And we can see it here in life on [Baby G]. So a couple of things follow from this -- thank you, Mr Murphy.
That was by accident by the way. A couple of things follow. It's no good saying it can't happen by accident. Air embolus can happen because of legitimate medical treatment, something that Dr Bohin accepted only reluctantly and Dr Evans was unwilling to accept at all. We're not suggesting for a moment that every allegation of air embolus in this case is explained by a medical accident. We question and we challenge whether air was introduced in any of these cases. But it does remain a possibility, actually, doesn't it, from the evidence that if there had been an air embolus, it's entirely possible that one or more instances could arise from the course of sub-optimal procedures. It must have done there on [Baby G], one of the babies in this case.
But secondly, and importantly, this establishes that an air embolus, if there is one present, can be visible when someone is alive. So it's not right to take the line that it wouldn't be possible to see it on a radiograph during life because the blood is moving. It's not right, it doesn't follow that there cannot be an air embolus when the blood is moving. The whole point about an air embolus, of course, to some extent, is it acts as a blockage, it isn't moving. That's the problem. So it will show up, air shows up on a radiograph. And we've got it there. That is decisive. It seems a small thing, something that just came up in the cross-examination of Professor Arthurs, but we say, ladies and gentlemen, it's crucial to keep this in mind in this case. This is stuff we have now, we have an image of air emboluses, I am not sure in the Lee and Tanswell whether that's in life or death, but in the case of [Baby G] it's in life.
Ladies and gentlemen, scientific medical evidence, we say, needs to be sufficiently reliable if we're going to rely upon it in a criminal trial, as we are in this case. And we say that in this case the scientific evidence in this area in particular falls far short of that. There is a lack of genuine expertise across the witnesses. There really is on the evidence. The research basis for the findings that you've been given is poor from the link between gas in the great vessels to the question of discolouration. And what guidance we have from the experts has been applied inconsistently throughout the case.
And it's no answer, we submit, to say that there are enough bits and pieces to put it all together and say it does the trick. It's not enough to say that. If there is a lack of expertise and a lack of scientific rigour, it can't be compensated for by taking what is, in the first place, inadequate knowledge and then just repeating it and applying it in this case over and over again. And we say: where is an image that looks like what we know an air embolus is in this case, apart from on one of the babies when she's at a different hospital? Where? And there isn't. And this is an area, we say, where the evidence is so poor it cannot safely be used to support these allegations. Of course I'm going to go through them with you. But rather than seeing if the theory can be manipulated to keep the allegations going, just look to see how it has been used like that, just to prop them up. You'll just see that.
I'm going to return to [Baby A]'s case now. So that's general points about air embolus. We are confident, ladies and gentlemen, you'll understand the application of them to the other cases, the other cases where it arises as we go along.
We've already dealt, in fact, in looking at that with much that arises in [Baby A]'s case, but the question, first of all, of sudden and unexpected collapse. Because it was sudden and it was unexpected, wasn't it? But obviously, it's unexpected. If it was expected, someone would have stepped in to give him the treatment he required, like giving him fluids, which he didn't get, his dextrose, putting the line in the right place, paying attention to his elevating respirations and the heart rate remaining unchanged. We say no one appears to have been expecting anything, but given that, no one was actually doing very much. The failure to read subtle signs.
Inability to resuscitate. Well, sadly, that happens and happens with many conditions after a certain point. We submit that doesn't prove air embolus. For the reasons we've said, that is a piece of back-to-front reasoning that is used over and over again when it suits the prosecution because, of course, sometimes, despite that principle of air embolus, we find a baby is resuscitated.
Discolouration. Ladies and gentlemen, this is the crucial detail in [Baby A]'s case, we say, and unless this is something you can be sure of, there is no basis for air embolus here at all. The prosecution have recited descriptions of rashes to Ms Letby and to you, as they're entitled to, of course they can do that, but what they've done is to recite evidence that has been given by witnesses in this trial from that witness box and that's the only material they've gone to. So you have had recited to you evidence from witnesses who have had years to think about this, to talk about it and for recollections to change. You can see that. So we say it is crucial, isn't it, to look at what was recorded at the time. And we haven't done that for a long time, although I've referenced it.
We say where -- you've got them, ladies and gentlemen -- where in the medical notes or the contemporaneous documents do we see any reference to any striking discolourations such as that described in the evidence in the case of [Baby A]? We start with [Baby A], in the case of [Baby A]. We don't. We do not.
That, we say, is extraordinary. If something is so unusual, in the way witnesses have later said it was, it is extraordinary that it should fail to be recorded by so many people on so many occasions. One of the roles that you have, ladies and gentlemen, even in a case as technical as this, is to apply your common sense to what you see and look at. It's not that lawyers don't have it, whatever views there may be, it's just that where you are, your task is to assess the facts. And there comes a point, doesn't there, when something becomes just unsustainable? How can it be said there were these striking discolourations with [Baby A] when so many people do not identify them at the time?
Caroline Bennion, who's one of the nurses who dealt with him, who was close up to him during resuscitation, describes nothing remarkable, an experienced nurse. So before we even come to the descriptions, nothing from her.
Mel Taylor who was close up during the resuscitation process, nothing remarkable.
David Harkness, the doctor responsible directly, gave very dramatic accounts in evidence and I asked him about it in cross-examination I said:
"Question: It's something you'd never seen before?
"Answer: No.
"Question: Unexpected?
"Answer: Yes.
"Question: And you've given us a description of the patches of blue, purple and red and white patches; that's the description, isn't it?
"Answer: Yes.
"Question: Personally striking?
"Answer: Yes.
"Question: It seemed to be linked to this, as you put it, unexpected deterioration.
"Answer: Yes."
That's on 20 October.
If that is right and if he's a clinician and able to put down in his notes all sorts of observations -- and you'll see them, ladies and gentlemen, at tiles 185 and 183, that's where his notes are, we don't need to put them up right now because the point is there's nothing to see on this topic. Lots of other stuff, not this. Despite saying how striking, how it sticks there and the most lurid descriptions to you in evidence.
What about his statement to the coroner for the inquest in July 2016, so over a year later? No reference there either. How can you possibly not include this lot in a statement for a coroner if it's what you saw? And don't give us the, "Oh, I was just so surprised I didn't think of doing it", it's been a year that's gone by. He wasn't surprised to put down everything else he put down in his clinical notes, was he, just this most striking extraordinary thing. Incredible if he saw what he went on to describe years later, not incredible if it isn't what he saw.
[Nurse A]. Her evidence is a good example of how recollections shift, ladies and gentlemen. When she gave evidence to you on 24 October, she did give descriptions that were unusual, although not actually the same as the Lee and Tanswell one but there we are, but unusual. But it seems she had forgotten what she had said to the police in May 2018. You've had, you've been reminded of her descriptions, given in evidence. What did she say when she first spoke to the police about this? I asked her about that in cross-examination on 24 October and I said:
"[Nurse A], when you made the statement to the police [this is on 18 May 2018], you said, 'He was centrally very pale and unusually his limbs were what I can only describe as white.'"
That's it. That's it. No blotches, no red, no purple:
"Centrally pale and unusually his limbs were what I can only describe as white."
"Question: And that's all you said about discolouration, [Nurse A], all you said?
"Answer: Okay.
"Question: You didn't mention an unusual discolouration, did you?
"Answer: It's not --
"Question: Or purple blotchiness or anything like that? You didn't.
"Answer: Okay.
"Question: And although on Friday you said maybe there was more discolouration on his torso, when you made the statement to the police back in 2018, 4 years ago, you said, 'Centrally he was very pale', and you've explained to us centrally means on the central part of the body; yes?
"Answer: Yes.
"Question: That's different from the description you gave us on Friday, isn't it?
"Answer: Yes."
She agreed, yes.
How on earth do we get from "centrally very pale and unusually his limbs were what I can only describe as white" to blotchiness or purple or red or goodness knows what else it was later on?
She went on, after she'd made that first statement to the police, to make another one later in which she said that she saw discolouration on [Baby B] and that was like the discolouration on [Baby A]. But her actual account, her first account of what she saw, was:
"Centrally very pale and unusually his limbs were what I can only describe as white."
And she agreed in evidence what she said in evidence was different from that and not just a little bit different. For the purpose of the issue we all know we're dealing with here: totally different.
Ravi Jayaram gave the most striking descriptions of [Baby A] being "pale blue", of the colours "flitting",
"moving round", "things he'd never seen before" in evidence on 24 October. And also in a statement to the police in 2017 he described:
"Unusual discolourations and flitting patches of pink areas on the background of blue/grey skin."
That sounds amazingly familiar, doesn't it? That sounds a lot like the description in the Lee and Tanswell. It could almost have been taken from it. It could Almost have been taken from it:
"Patches appear to appear and disappear."
So his evidence to you and what he said to the police at an early stage of this investigation, very striking, very like the Lee and Tanswell article he'd read only a short time before.
And he said in answer to my questions on 24 October he'd never seen something like this before and it was extraordinary. And this is an experienced clinician trying to work out what has happened, he would have us believe.
Let me suggest to you, ladies and gentlemen, what is extraordinary about that description -- two extraordinary things in fact. First, that it made no appearance in his clinical notes at the time. They are detailed. They are full of details. You'll find them at tile 210, but no appearance there. Nor is there any reference to them in the lengthy statement he made to the coroner for the inquest in July 2015. How on earth can they be missed out? It's the first remarkable thing. Nothing in his clinical notes or the coroner's statement.
The second remarkable thing, and I have touched on this, is that it does seem to fit remarkably well with the wording in the Lee and Tanswell article that he read some months after this event, but before he made his statement to the police. We're hearing a lot about coincidence in this case, aren't we, ladies and gentlemen? You may agree that isn't a coincidence, is it? And we suggest that the only reasonable explanation is that at the time he did not see what he later described. There is no way he would not include a description like that in the clinical notes. And what a coincidence that David Harkness didn't either. How could two, one very experienced, the other relatively experienced, clinicians both fail to do that?
It may be they were too busy talking about how the long line was well placed. But it's not in the notes, is it? And that is extraordinary and way beyond any inconsistency that Ms Letby has had fired at her and been hauled over the coals for in this case. It's way beyond missing out the word stained from "bile-stained aspirate" in paragraph 70 of the defence statement, isn't it? It's extraordinary. That's the bedrock for this. And it's not even there in the notes at the time or the coroner's statements.
Gas in the vessels, the radiographs won't tell us that, it doesn't even look like an air embolus and it could be resuscitation. And air bubbles in the histopathology by Dr Marnerides, this is some garnish provided to the prosecution case by Dr Marnerides. He's not an expert on air embolus, he can't say how they work. He pointed to tiny items in thin sections of material taken from the lungs which may or may not have been air or fat. And he pointed to a similar things thing in the brain which was most likely a bubble of air, although not 100% sure. And he conceded:
"This is not proof of an air embolus."
He said it was highly suggestive. We say that is pushing it. They are minuscule finding and it is no surprise that in fact Dr Marnerides readily accepted these findings did not show -- did not show -- there had been an air embolus in [Baby A]'s case and that, from a pathological point of view, the cause of death in [Baby A]'s case remains ascertained. That's on 26 March.
So [Baby A], ladies and gentlemen. We have to keep in mind who's proving what here and you need to be sure about these allegations. We say there is no fair or proper basis for an air embolus on the evidence of the experts. What we do have is undeniable poor care of a very fragile and premature neonate; you've seen what that consisted of. And we have circumstances in a busy nursery with people all about, no suggestion Ms Letby accessed the line at any point after Mel Taylor had used it to put fluid down the line that Dr Harkness had left in the wrong place. And that's the evidence on this count.
My Lord, can we pause at that point?
MR JUSTICE GOSS: Yes, certainly. Ten minutes then, please, members of the jury.
(In the absence of the jury)
MR JOHNSON: My Lord, I don't want to pick up trivialities, and I hope that this isn't a triviality. But at page 29, line 16 of today's draft transcript. My learned friend said:
"You won't find air in the heart on one post-mortem photograph in this case."
You won't find it one, you'll find it on two. It's the evidence of Dr Arthurs on 3 February, relating to [Baby E], at page 69, and [Baby O] on 16 March at page 50.
MR MYERS: I'm grateful for that and I shall check that. Not because I don't accept it, but I just want to check.
MR JUSTICE GOSS: Do check it and then it'll be up to you whether you want to correct it or whether you want me, if it is correct, to correct it in due course.
MR MYERS: Yes. If that's something that is missed and incorrect then I would like it to be corrected if it makes a difference --
MR JUSTICE GOSS: Check it --
MR MYERS: Yes, I will (overspeaking) --
MR JUSTICE GOSS: (Overspeaking) with the assistance of those --
MR JOHNSON: (Overspeaking) it verbatim now.
MR MYERS: Thank you, my Lord.
MR JUSTICE GOSS: Thank you very much. Yes, we'll do that.
Thank you very much.
(11.41 am)
(A short break)
(11.51 am)
(In the presence of the jury)
MR MYERS: Count 2, ladies and gentlemen. [Baby B]. [Baby B] was born on 7 June 2015 at 20.30. Again, 32 weeks and 2 days, the first of the twins and 1.669 kilograms.
On 9 June, just before midnight, she had a desaturation down to 75% and the CPAP prongs were dislodged from her nose.
Then, on 10 June, about 12.30, so half past midnight, a sudden desaturation to 50% and associated with the discolouration to the skin that is described. Dr Evans and Dr Bohin identify, or say they identify, air embolus as the cause of harm.
In [Baby B]'s case, we start or are asked to start with the statement that she was stable before her relatively brief deterioration around 00.30 on 10 June. Fortunately, it was a relatively brief deterioration. That doesn't underestimate the fact that any deterioration is a matter of concern, but with what we're dealing with in this case, it is relatively brief. It didn't involve her being intubated.
Can I say at the outset, ladies and gentlemen, the defence recognise on the evidence in the case of [Baby B] that there is no obvious medical condition or apparent or obvious sub-optimal care. That's recognised. We're not just saying it every time we come to a count that there is. Here we recognise that there is no obvious evidence of that.
But we also observe this: that in terms of what is alleged, that there was an attempt to kill [Baby B] with a lethal air embolus, not only is the evidence of that unclear, but it is so weak, we submit, it is no basis for being sure of what is alleged. And that's what matters. Because, as we have explained, and as you will understand, it may not always be clear exactly what's happened and we have to be careful, particularly in a case revolving around medical material like this, not to jump from saying, "Well, it isn't clear therefore guilty". If it isn't clear, it's therefore not guilty.
Just some general points about [Baby B]'s condition before we look at the event itself. Her birth condition actually was relatively poor, she was the more poorly one of the two twins we heard. As it happens, we went through some of the material relating to breathing issues after the time of the event and this is in the additional material for [Baby B].
But we see that on 19 June, so this is some time later, there's an entry in notes by Nurse Caroline Oakley describing "fleeting desaturations and bradycardia". On 20 June, Nurse Kate Brammall describes apnoea and desaturations down to 70 or 80% and the heart rate drops, self-correcting.
And on 14 July, after discharge, we saw a note in medical records of an attendance at hospital where there had been issues with [Baby B] and she had been mottled. Nobody's suggesting those have been caused by the event we're looking at here and they are not as serious. But we identify them because it shows, as with others, that there can be deteriorations for any number of reasons that may or may not be identified.
In [Baby B]'s case, we know that she had also been going through a process of attempting to insert lines into her, rather as [Baby A] had. You may recall we'd asked questions as to what is the number of attempts it should be, the competent number of attempts it should be to insert a line, and it seems that up to three -- it takes as many as it takes, of course, but the aim is to deal with it in three. And Dr Harkness, we know there were five attempts by him on the line insertion chart in the additional material, but five attempts to insert a line before it happened. That's some time before the deterioration, we are not suggesting there's a direct link. It's just not very good, we say.
There were also attempts to insert a UVC on the 8th by Dr McCormack with difficulties, all of which are capable of putting a baby under stress.
Then we have an entry by Nurse Caroline Bennion at tile 31 in fact, let's have a look at that, at 3.28 on 9 June. So we've been going through the lines, the attempts to insert a UVC, and if we look at tile 31 on 9 June in the [Baby B] sequence. If we can enlarge that, please, we can see things there. This is during the night shift before the night we come to.
There is reference in Nurse Bennion's note to the left hand and arm looking puffy at 21.00 hours; that's earlier in the shift and the infusion stopped. Delays there. It says:
"[Baby B] appeared jittery at this point and BM and gas obtained."
We can see lactate is high at 4.1. She seemed to improve during the shift, the lactate dropped, the jitteriness settled, but "[Baby B] is very active". It doesn't sound like that was something that Nurse Bennion regarded as a positive thing, it's hard to tell, but that's where we get to. But again we are not suggesting this leads directly into what happens at the time we are looking at. But also, by the same token, it's consistent with what we know about the babies on this unit, that they can change and they can change rapidly. That's where we are.
What do Drs Evans and Bohin suggest was the cause for the event at 00.30 hours, which is the one we're looking at? In the case of Dewi Evans we have literally -- or we did literally go through all the options in the search for something that can support an allegation of harm. We can take the note down, please, Mr Murphy.
We had the suggestion that Ms Letby had or may have deliberately removed [Baby B]'s nasal prongs around midnight. That was something he put in his report, although he didn't seek to push that in here. This was early on and we were identifying these things to show the theme of Dr Evans coming up with whatever alternative he could find. That was one of them.
We had the suggestion from Dr Evans that [Baby B] had been smothered, literally just thrown out there like someone casting a fishing line. He didn't persist with that and there's no evidence of smothering and not a suggestion from anyone that they noticed [Baby B] being smothered. So maybe that's why that mechanism was also abandoned. Then we have air embolus, supported by Dr Bohin.
I'm going to pause on the topic of prongs because whilst that isn't something which is seriously alleged against Ms Letby, it has relevance elsewhere in this case about the way that these babies can interfere with breathing aids, tubes, items put on their faces, and we have heard evidence about that.
[Nurse A] made the note about the prongs being dislodged shortly before midnight on 9 June. She was never in any doubt that was [Baby B]'s own doing. She was there, she'd know. But she described how the CPAP prongs are secured by ties on [Baby B]'s hat, but she said on 24 October it's not unusual for them to be knocked out by a baby from just moving or pushing them away. You may want to log that, about how these things move about or can be dislodged without anyone interfering.
What about air embolus? Before we come to look at how strong the evidence actually is, ladies and gentlemen, we say it's important to consider how unlikely that anybody, be that Ms Letby or any other nurse, deliberately injected or could have injected air into [Baby B]. And again, it comes to this: these allegations, these accusations, have to be placed within the real world. There's a place where this is said to be happening and you have to weigh this up in the context that you're looking at and nursery 1, where [Baby B] was, is a busy nursery.
[Nurse A] was working there, other nurses can come and go at any time as they require for equipment or medication. Belinda Williamson or Simcock talked about this and I reminded her actually on 16 November of what she'd said in a statement to the police on this. What she said to the police was this, ladies and gentlemen, back in February 2018, and I'm going to this because it helps paint a picture of what nursery 1 was like.
Just pausing, when we look at the layout -- the psychological trick that happens in this case, when we look at those layouts, it's very easy to see baby, nurse's name, arrow, and then we're left with the sense that that's it, it's a sort of static situation, that's it, that's all that's going on. Of course it isn't. There's people moving around, there's doctors coming and going, not all the time, but they are, there are nurses moving around, there's people in the unit.
As to nursery 1, what Belinda Williamson said to the police was:
"We have a number of drugs cupboards on the unit. There are four drugs cupboards in nursery 1 and a fridge in the sterile store opposite nursery 1."
She went on to say:
"All the cupboards are locked and the keys are held by the shift leader or another band 5 or 6 nurse."
And then she went on to say:
"As a result of the cupboards' location nursery 1 is constantly busy. I would liken it to a bus station, it can be so busy."
So that's from one of the witnesses who worked there, a prosecution witness, likening it to a bus station. It is very easy in our mind's eye just to think of it as just an empty space that looks like what it looks like on the layout with an arrow and a name or couple of names. "Like a bus station." It's a hub in there, people coming in and out whenever at any time.
I asked her:
"Is it right that in addition to whoever was caring for the baby or the babies, staff could be coming in and out at any time to collect items?"
And she agreed. But perhaps to balance some of the impressions created in this case, keep in your mind that description from a nurse who knew that unit well, that it was "busy or like a bus station in there".
For this allegation of harm to have taken place, Ms Letby or the person responsible would have to be close to [Baby B] at the time air is injected. Remember, it's rapid. And of course she's not. She's not. She was assisting [Nurse A] in nursery 1, which is a normal thing for one nurse to do with another.
These things build up. Of course suspicion was raised because she was in there. But you have the reviews, you've seen the evidence: the nurses assist all over the place.
She assisted with TPN being put up at 00.05; that's at tile 213. She is hardly injecting air then. We don't accept she is at all, we don't accept it in any way, when I say that you'll appreciate I am just dealing with what it is the prosecution are saying. [Nurse A]'s not going to miss that. And it's not going to take 25 minutes to take an effect, is it, if it's injected then in fact? It's quick, 1 to 2 minutes according to Dr Evans -- until, can I say, we came really to [redacted]. We got some new developments at that point, which we'll come to. But it's quick. So that's not quick.
A blood gas taken at 00.16; that's at tile 20. No sign of any air embolus or deterioration then. Nothing immediately following it. No suggestion that Ms Letby is seen to have done anything at that point in any way or anybody else. And then at 00.30, [Baby B] desaturated dramatically, at which point Ms Letby was with [Nurse A] and not with [Baby B]. And nothing -- nothing -- to show she was, with witnesses there or a witness there, who knows who else, but certainly one. And nothing.
This must be one of the only cases where somebody can be in a situation so many times with nobody witnessing them doing anything and it being treated as totally okay to say, "Well, they did it". No one can tell us how, in what way, and it's not seen by anybody. It is an explanation that has formed an allegation, ladies and gentlemen, unsupported by evidence.
The evidence of [Nurse A] was that Lucy Letby was actually standing with her checking medication at the time this happened, and that was on 24 October. So she's with [Nurse A] at the time of the deterioration and that is it, and actually [Nurse A] said that she was keeping a particularly close eye on [Baby B] because of what happened when she knocked the prongs off and because of what had happened with [Baby A] and because she had a line in her. How much does it take to show how almost impossible -- there's no space to do anything unless we're going to invent one. This is a situation where both Lucy Letby and [Baby B] are effectively under observation by [Nurse A] who went out of her way to say she was watching what was going on with [Baby B] because of her concerns.
Well, what is the evidence that these expert opinions are based upon that is meant to prove beyond reasonable doubt that this was an air embolus? Discolouration? I'll come back to that shortly. We say that is the only feature worthy of consideration. It is worthy of consideration, we recognise that. We recognise you'll want to consider it, not just dismissing everything. That is something to look at and I will come to that in a moment.
Rapid acting. Well, no, not if they're trying to pin this on Ms Letby because nothing happened rapidly when she was looking after [Baby B].
Inability to resuscitate? Well, you've heard what we say about that. We say it is significant. If an air embolus is introduced, it is invariably going to be lethal. You cannot have air embolus being introduced all over the place, as happened in this case with Dr Evans and Dr Bohin, and them not be lethal, least of all if they're introduced with an alleged intention to kill. Because -- I am not wishing to be insensitive, but if that is the intention, how difficult is it? What on earth is the difficulty if you can do it? If you can already do it. If it happened with [Baby A], why on earth wouldn't it happen every time? It's not going to take much, is it? A teaspoon, we were told.
[Baby B] made a swift recovery in fact. I remind you, 78% nitrogen. It doesn't just vanish, it stays there, we've seen that on images in this case, the image of [Baby G] in particular I'm referring to.
Air in the system. We do have a radiograph that was taken at 40 minutes after the deterioration. It's at tile 240, I wonder if we could put that up, please, Mr Murphy. There it is. Nobody suggesting air on that in any sort. The point has been made, you wouldn't necessarily get air in a radiograph in life even if an air embolus has been introduced. That may be so. But we know that you can as well from what we've seen with [Baby G] and from the medical logic of this, actually, but you can. And there isn't. There isn't. If there was, it would be identified. There isn't.
I put it down -- just to make the point, we have the image taken in the sort of period when, in [Baby G]'s case, there was still air on that radiograph at Arrowe Park, it was there for some time. It doesn't just go.
Can we take that down, please, Mr Murphy? Thank you.
Discolouration. I'm not going to keep repeating the points that we make, ladies and gentlemen, because they apply in case after case. In [Baby B]'s case there was discolouration that struck those or some of them at the time as unusual. That's right. We ask, as we go through this, to keep in mind this is the only case, actually, where there is evidence from what was recorded that we say genuinely establishes that. We have [Nurse A]'s note of purple blotchiness with white patches, so she was able to describe that, no reason not to, when she came later to talk about [Baby A], and Rachel Lambie's note of purple discolouration with white patches. And then [Dr B] said when she came later she was told about purple blotching and it was on the right mid-abdomen and on the right hand when she got there. That's it.
So we are not disputing in this case there are those descriptions. But again -- and we make no apology for saying this, because it's where we started -- none of them fit that description in the Lee and Tanswell paper, which is the colour that we are told or that the mode of colour be flitting changes, the bright pink areas over the cyanosed blue background, none of them match that, we say. There's no real way of checking, is there? We don't have any images. But that is a precise description.
I remind you that babies can be discoloured for many reasons. We question why an air embolus should just cause discolouration such as the sort that was seen on this occasion. And this becomes guesswork, doesn't it? We look at [Baby B] and say, "Oh, that's like [Baby D]", or, "That's like [Baby O]". How on earth can anyone say that? You look at the clinical notes if you like, ladies and gentlemen, we ask you to, we don't shy away from this evidence. I am talking about it now. You look at it and perform your own comparison as far as you can, particularly on the notes at the time. You'll see how approximate this becomes, even in the case of [Baby B]. What we're acknowledging is there's at least a record of something at the time, as there is in the case of other children, mottling or whatever it is.
One factor that we draw to your attention, particularly where Rachel Lambie is concerned, who's the doctor who attended at this point, she had been there -- you may think this is important -- when [Baby A] had collapsed, and what she said about [Baby B] was that was the only time she'd seen discolouration like that on [Baby B]. I asked about it on 24 October and she said she'd never seen anything like that before. That's interesting, isn't it, because that is a witness who has made a note at the time in the case of [Baby B], who was present for [Baby A] and [Baby B], and was clear that what she saw on [Baby B], whatever it is, we don't accept it's air embolus at all, but whatever it relates to is the only time she'd seen that and she'd not seen that before.
So if anybody was in a position, in whom you could have some confidence to say it was like [Baby A], she is the witness, and she specifically does not. She says something quite contrary to that. That's the best evidence we have for making a comparison in this case, we say, from a witness who did make a note with [Baby B] and she doesn't liken it to [Baby A].
So what do we say about air embolus? We accept some of the witnesses describe a discolouration they considered striking, but there is no evidence to establish that is diagnostic of air embolus and no basis for saying it's the same as the others in this case. To state the obvious, if it needs to be stated, unfortunately (sic) whatever happened with [Baby B], whatever condition it was, was not fatal.
Whatever it was is not supported by evidence by way of an X-ray and an X-ray was taken over the relevant period and we say that is important. You can look at -- you've been addressed at length about circumstantial evidence but we say with regard to that, that involves also looking at what is missing that might otherwise be there that could give you some degree of certainty in what you're asked to find, and we say it is highly relevant that that is missing.
So nothing by way of any radiograph that fits with an air embolus, and we know that can be done, it's not there. I'm going to identify this. It's an unhappy detail that appears in some cases and something is made of this. I don't mean to be indelicate, but let's face it: no screaming, no crying, no distress. The reason I identify that here, and it applies to [Baby A] actually, is so much has been made as we go on in the case, as Dr Evans and Dr Bohin began to spread out and look for clues as to what they could rope into their ever-flexible air embolus theory, it morphed somewhere along the way into cries of distress. That wasn't anything they identified at the beginning of this case and it isn't anything we see in the first two cases.
So reliability and consistency is important, otherwise we are literally in the territory of experts who have got a free hit at making this stuff up as they go along and we say, without a moment's hesitation, there has been a lot of that with Dr Evans and Dr Bohin, there has been. You can see that on the evidence. It has just changed as required.
If distress was such a feature, why wasn't that identified right at the beginning when I asked them about it? That's why I asked, so we could have something to measure it against. Instead, it just came up when it was a detail they could work into the story, work into the theory.
So as it happens no air on any radiograph and no distress. No principled basis, in fact, consistent, we say, with what happened to [Baby B] as being due to an air embolus. There really isn't. Plenty of evidence to support that she suffered a significant desaturation, and we say that is consistent with her prematurity, and fortunately there was a relatively -- relatively -- rapid recovery and that is it.
Afterwards, various things were identified by the prosecution, very much under the presumption of guilt head we say, just picking things out to which prejudice can be attached. For example, something was made of the fact that when we go to the neonatal review we have Ms Letby looking after [Baby B] up to and around 1 am that morning as if that was sinister. Another one of those examples where she is doing what other nurses do, helping a nurse, and in this case she had to help because [Nurse A] was looking after [Baby B]'s parents.
[Nurse A] was the designated nurse, we went over this, she went to help or deal with [Baby B]'s a parents, so the nurse who continued to assist was Ms Letby. That's it. But it's used against her to shore up a weak allegation.
The prosecution picked out a message in the [Baby A] sequence at tile 337. I would like just to look at this. Thank you. There's a bit of jumping around here with this inevitably because we were looking at a couple of sequences. This was picked out as a message sent by Ms Letby to Ashleigh Hudson on 12 June at 10.08. And it says:
"It was awful. He died very suddenly and unexpectedly just after handover. Not sure why. It's gone to the coroner. [Baby B] went off Tuesday night and was intubated but back on CPAP now. They are querying a clotting problem. Very sad."
Pausing there, they would query it because there was antiphospholipid syndrome for both these twins if you remember. They would query it but that's what Ms Letby said at that point. And the prosecution in closing their case said on 20 June, having identified this:
"Lucy Letby fastened on to that as an explanation. We know from [Baby A]'s sequence at tile 337 they're querying a clotting problem."
The point being, as was made a number of times, that she was introducing ideas or conditions as cover for what the prosecution allege she was up to. And we saw that point being made many times. And this was seized on.
It's consistent with that theme, or one of the themes of the prosecution case, we say, where they look at what the nurses are talking about, seize on comments by Ms Letby, and then use them in whatever way props up or supports the allegation. In this case, as in others like it, saying: look how she's raising a false cover, what she's brought up.
Well, as ever, we have to look at the context. So just to see how clotting enters its way into this and where the idea comes from about querying a clotting problem, let's go back 2 days to 10 June, 10.09 in the evening, on the [Baby B] sequence at tile 349 just to see where clotting actually makes an appearance and how it comes into this.
So we are now 2 days before that message which the prosecution identified and it's a message from Lucy Letby to [Nurse A], 10 June:
"How is [Baby B]?"
Which isn't a surprising question given what had happened. This is actually a good example of how she cannot win, because of course, "How is [Baby B]?", no doubt could be identified as, oh, look, she's showing an interest in what happened. Not asking about [Baby B] would be considered perhaps as very odd, you're not bringing up something you were involved with. It works either way, doesn't it?
Anyway, "How is [Baby B]?", she asks [Nurse A]. In response, if we go to tile 350, [Nurse A] to Lucy Letby:
"Looks really good. Wanted her vented overnight but blocked her tube and happy on CPAP. Not that that means anything after last night!"
And the next message, please. [Nurse A] says:
"We also have a 30/40 800-gram and new 31/40 twins. T1 girl, T2 boy. Boy vented and in [Baby A]'s space. Other two new babies on CPAP."
Then we come to this at tile 352 when we're looking at where clotting problem start. Let's have a look, [Nurse A] to Lucy Letby:
"[Baby A]'s preliminary report: no gross abnormalities, so now bleeds, clots or line issues. [Baby B] all ultrasound normal. D-dimer result not significant, so no idea what's happened [as read]."
There we have [Nurse A] to Lucy Letby:
"So now bleeds, clots or line issues [as read]."
That's where clotting issues come into this. It isn't Lucy Letby generating clotting issues as some sort of cover when she talks to Ashleigh Hudson on 12 June or fastening on to something. It's her talking about something with another nurse that [Nurse A] told her about. It is, we say, an exchange that would be considered unremarkable in the case of any other nurse.
The prosecution do not raise suspicion against [Nurse A] for here -- for what we have here, do they? They don't raise it. She mentioned it soon afterwards. Again, just imagine if that message was the other way round. What would be said then? You know what would be said. As the prosecution said in closing, "You know what I'm going to say, don't you?" Yeah, we do: Lucy Letby, every single time.
Final point on this, ladies and gentlemen, with [Baby B]. I'll leave you with this: I'm going to ask Mr Murphy to take that down but to put up [Dr B]'s notes at tile 223, the clinical notes from [Dr B], the consultant. We leave you with this because we say this is an insight into the opportunistic way this prosecution theory of air embolus is constructed against Lucy Letby.
If we just enlarge -- these notes are made by [Dr B]. If we enlarge the lower half, please. You may remember this:
"Adrenaline not required."
She sets out the bolus that was given:
"Upon my arrival, purple blotchiness, mid-abdomen and right hand. Pink and active."
Can you see that? I don't know if you remember, what little insight into the prosecution and the experts we got with this; yes? Independent experts, objective, you can rely upon them, not taking a crack at any point they spot as it comes by. All right, let's put it to the test.
We all know what "pink and active" refers to, and [Dr B] said so in her evidence on 25 October. It describes [Baby B], pink and active. We've seen it. That's a description for babies. After I'd finished cross-examining Dewi Evans about discolouration and what we say is the lack of convincing or consistent evidence, I sat down, and the prosecution got up because they're allowed to ask their witness questions to, in effect, re-examine and deal with any fresh points or points arising. They came to this and, we say, offered a suggestion to Dr Evans, who we say had given very unimpressive evidence on discolouration. That's a matter for you, that's my submission, you'll judge him on the evidence, but we say it was unsatisfactory.
He was asked this by the prosecution:
"Question: The notes of [Dr B] that are on the screen at the moment, Dr Evans. If you just look, it was suggested that what [Dr B] had noticed was inconsistent with the article. In other words, the only part that was read to you was:
"'On my arrival purple blotching or blotchiness.'.
"Whatever that says halfway down.
"Answer: Yes.
"Question: But in the next line it says, 'Right mid-abdomen and right hand, pink and active'. Do you see that? [Dr B] interpreted her own handwriting for us this morning. That pink and active wasn't read to you. Do you see that?
"Answer: Yes, yes.
"Question: Is that consistent or inconsistent with the Lee and Tanswell."
Dr Evans immediately:
"Answer: It's a good point, actually."
It's a good point that pink and active is consistent with Lee and Tanswell? Not a good point, it is a ridiculous point. The sort of point you will grab at if you're interested in propping up an allegation on whatever basis you can come up with, whatever the facts. That is exactly what happened there. That is a direct hit of Dr Evans doing the sort of thing he was criticised for so severely by Lord Justice Jackson: working-up an explanation. So we spotted this a month or two before we came to that decision.
This is the same expert who you were being asked to rely upon across this case. But it didn't end there we say. When Dr Bohin came to give evidence I asked her about this and she agreed that pink and active describes a baby, not a rash, and that people in neonatal medicine do not describe rashes as pink and active.
Now, I pointed out what Dr Evans said and Dr Bohin's reaction was to say that was a mistake, and quite rightly, of course, I respectfully observe, his Lordship pointed out that it may be difficult for one witness to comment on what another witness has said, and with that we respectfully agree, that's right.
But now we have come to the end of the evidence you'll recall much has been made, after that point in the case, by the prosecution of how Sandie Bohin is involved for the purpose of peer-reviewing Dewi Evans, and there certainly has been no limit on her commenting on his opinions and findings elsewhere. It's what we're told she was here for. And we say, and you saw this unfold in evidence, that it is revealing that when we came to this point, we say her reaction was to excuse him by saying it was a mistake.
It's not a mistake to say that -- well, it may be a mistake to decide to say that, I suppose, a mistake for a supposedly independent witness to do that. But it's not what might be called an innocent mistake. We say it's patently obvious Dr Evans knew what he was doing and it's beyond an easy dismissal on behalf of somebody else suggesting there's anything mild about that. That is what we're dealing with and that is the sort of thing that the evidence you are asked to be sure about in the case of [Baby B] is based upon. It is the same experts making the same assertions in other cases where it may not always be as obvious how poor the basis for their findings is, but it just shows how little it takes and how they will use that evidence, we say, and that then is pre-eminently a job for you to assess.
You have to be sure of harm in this case and we say we are way away from that in the case of [Baby B] on the evidence.
[Baby C], ladies and gentlemen. [Baby C], born on 10 June 2015, at 15.31, half past 1 in the afternoon (sic), 30 weeks and 1 day gestation, 800 grams.
On 13 June, so what we now know would be called day 4 of life, at 23.00, Sophie Ellis gave [Baby C] his first milk feed.
At 23.15, he collapsed. CPR started, but it couldn't revive him and it ceased at 45 minutes past midnight and, sadly, [Baby C] died at 05.58 on that morning of 14 June. That is count 3 on this indictment.
Dewi Evans identified no cause in his reports before the trial, but in evidence he said this was air down the NGT and then also said air embolus.
Dr Bohin identified no cause.
Dr Marnerides identified or suggested air in the abdomen, gaseous air, gaseous exogenous air.
We say at the outset, so many things that are wrong and unfair about this case generally are illustrated by this one charge, and we mean wrong and unfair from the position of where Ms Letby sits.
If [Baby C] had been 1 gram lighter, he wouldn't or shouldn't have been at the Countess of Chester Hospital at all. That is before he became unwell, which we maintain he undoubtedly did on the evidence. His chances of survival were not good, we say, even before he became unwell. He suffered from infection, he couldn't be fed, he was producing black or dark bile aspirates regularly during his final 24 hours and he had pneumonia when he died. Those medical findings can't be contested, they're the evidence.
Whilst the experts identify harm being done on 12 June, when Lucy Letby was not on duty, they cannot convincingly identify what was done to him, we say, to cause him to collapse and die at the time when she was on duty on 13 June, although she wasn't designated. We say they have refused to accept that [Baby C] was as unwell as he obviously was. And finally, Ms Letby is being blamed for something where, yet again, on a careful consideration of the evidence it doesn't follow that she was even in the room at the time that any harm would have had to have been done to [Baby C] if the prosecution are right that harm was done.
[Baby C] had a number of serious risk factors from the outset: he was extremely low birth weight, only 800 grams, he was very premature, there had been intrauterine growth restriction, and what was called reverse end-diastolic flow, which interferes with blood flow pre-birth. He was regarded as a high risk of potential decline or infection or NEC or abdominal problems, NEC in particular. We recognise that.
His markers for infection are high in the days following birth. Respiratory distress syndrome, lung consolidation. These are all in the notes, ladies and gentlemen. Elevated lactate. His CPR was up to 23 in the clinical notes of Gail Beech at one point. Low platelet count. Persistent production of dark bile aspirates and pneumonia on post-mortem. And Dr Bohin talked about that in particular and I'll come back to that.
We say there are failures by the neonatal unit and these, ladies and gentlemen, are not accepted by any of the clinicians. These are not accepted, but these are failures, we say, that exist. We say he should have gone to a tertiary unit for investigation given his condition of the 12th into the 13th.
There was no examination by a consultant before the 13th. There was a failure to react to the bile aspirates, or even vomiting, that had taken place -- and vomiting took place on at least one occasion and maybe two, I'll show you. We say the evidence shows a general failure of medical and nursing staff to react to the problems or document them properly.
When you look at that, we say that all of that is circumstantial evidence that is perfectly capable of showing you there was sub-optimal care received by [Baby C] and it had an effect because that played a significant part in how ill he became. And when we come to Sandie Bohin you'll see how she talks about how the pneumonia that he had would have made him weaker and less able to be resuscitated. So this is all cumulative.
Joanne Williams was asked about this by me on 28 October, about the potential for [Baby C] to develop serious clinical difficulties unexpectedly or deteriorate rapidly. And I said to her:
"Question: I think you would agree that you can never be complacent with a baby of the size that [Baby C] was?
"Answer: Yes.
"Question: You agree with that?
"Answer: Yes.
"Question: And you've been through your observations, and I'm going to go to them with you, but do you agree that however stable he appears to be at any particular moment, you still have to keep a very close watch on a baby like [Baby C]?
"Answer: Yes.
"Question: Because even if there are indicators of stability, change can happen quite rapidly, can't it?
"Answer: Yes. Obviously, it's making sure. That's why we carry out our observations and it can sometimes be only subtle."
That was from Nurse Williams:
"Question: Yes, that's what I wanted --
"Answer: Subtle signs.
"Question: Yes, subtle signs, thank you."
Then my question carried on:
"Question: I think your view was that a baby the size of [Baby C], in his condition -- I think you way you expressed it was it could make you quite nervous, I don't mean that in a critical way, but nervous. Do you mean in the sense you have to keep quite alert and just keep a close eye on what's happening?
"Answer: Absolutely."
Right? Now, we say the prosecution approach in this case, although not limited to this count, is to minimise the problems and, so far as they can, to present this as a baby where all was well.
When they cross-examined Ms Letby on 18 May, it's one of the many occasions she was asked a question and asked questions in detail about something where you may have thought, well, she can't remember all the detail. But the prosecution took her through excerpts from [Baby C]'s history, but their cross-examination began this way, they asked her:
"Do you accept that [Baby C] progressed well, having been born in good condition?"
Can I say, the aim of this was to get her to say he was all right. That's the aim of this questioning by the prosecution, as if that can actually determine this, but that's where we were going:
"Question: Do you accept that [Baby C] progressed well, having been born in good condition?
"Answer: I can only go on what other people's notes were. I'd not looked after [Baby C] before.
"Question: Do you accept the evidence is that [Baby C] was doing well?
"Answer: I think there had been issues with his abdomen and things but --
"Question: He wasn't perfectly healthy, that's why he was in a neonatal unit, but there were no causes for concern, were there?
"Answer: Not that I recall, no."
That's what she said. And then that's treated, isn't it, together with everything else, that that shuts the issue off and there's nothing to see here, move on. We disagree entirely.
That -- by the way, that answer came from the woman, I don't mean to dismissive by saying that, who agreed with the prosecution when they wrongly said that both [redacted] twin had been unwell when she handed them over. Do you remember that question was put to her:
"What happened with [Baby P]? Like his brother, [Baby O], they were both unwell when you handed them over, weren't they?"
And she agreed. And then, quite properly, the prosecution went on to point out that that was a mistake on their behalf, it wasn't both [Surname of Babies O&P&R]s who were unwell, they meant to say [redacted]. We'll come back to that. The reason I'm pointing this out is that even where there's no dispute that what they said was wrong, she went and agreed with it in cross-examination. She agreed with something the prosecution agreed afterwards was wrong. So there is no point taking answers she gave when she was manoeuvred into a position to say, "Do you agree this, do you agree that", and just assume that that is the end of the issue, which is what the prosecution would like to do. We say you look at the evidence if you would, ladies and gentlemen.
And let's see how [Baby C] was doing. We can start with the nursing note of Yvonne Griffiths, please, at tile 231. One of the strange things with the notes in the case of [Baby C] -- I just wonder if you could pull out for a moment, Mr Murphy -- so we can see the page, could you expand the lower part of that page?
It was actually -- it's a bit hard to see, but it's a right mess of notes here. We've got addendums on [Baby C] being put in on all sorts of days after the time that the deterioration and the death happened. It happened on the 13th and we've got people putting in notes around then and coming back and putting addendums in.
Yvonne Griffiths, which is the -- back to where you did go, please, Mr Murphy, on the right-hand side. Her note, which deals with events of the 12th, I think it had gone into someone else's notes originally, if you remember, but it doesn't find its way here until 14 June, a late addition of a note. It's actually poor record-keeping, isn't it? That is poor record-keeping. This is a baby who died and notes relating to his condition, which was not good in the period leading up to death, the day before, had been put in the wrong patient's file. So no one's going to read these, are they, at the time it mattered, unless they go to the wrong patient's file if I understand this correctly?
Can you imagine what would happen if Lucy Letby had done that? A baby's died and it turned out she had been put relevant notes in someone else's file. Plausible deniability, or some version like that, cooking the notes, cooking the forms, goodness knows what.
If we look down here, it says:
"[Baby C] unsettled at times [halfway down]. X-ray of long line."
And:
"18.30 hours, bile noted on blanket. Nasogastric tube aspirated and 2ml of black-stained fluid obtained. Infant too unsettled for lumbar puncture. Plan to reassess later."
We say this is a significant period. This is 12 June and this is where a particular problem is beginning to emerge, though there may be signs before then when we come to the radiograph of problems. 12 June this is with Yvonne Griffiths, note in the wrong place, describing bile on a blanket and "2ml of black-stained fluid obtained".
The next place to go to, ladies and gentlemen, if we're following this through, is the IC care chart at tile 25, please. It's the right-hand side, if we could enlarge that. You can see, ladies and gentlemen, where Yvonne Griffiths has signed that, 12 June. You can see where she's signed that on the right-hand side, the YGs going down. It's the day shift. Can you see 08.00 it begins? If you let your eyes adjust on that.
A couple of things about Nurse Griffiths' note -- and don't forget she's one of the senior nurses on the unit. Right? Let's have a look at this for a piece of record-keeping. Keep in mind what capital would be made of this if it was LL who was in charge here or designated and not YG.
We can see at 09.00 she hasn't signed it, this is a senior nurse on the unit, something Ms Letby would be taken to task for. I'm not going to go through every single time we see these things, but it's important. So much of this has been made by the prosecution.
Something is entered at 12 o'clock, not signed there. But perhaps, more crucially, we know from the note that she put in the wrong place and brought across a day -- the day after -- later in the day after [Baby C] had died, we know from that note that at 18.30 there was bile on the blanket, which could be consistent with a vomit, and that's important because vomiting bile is a red flag. There had been bile on a blanket and she'd aspirated 2ml of black fluid at 18.30. Okay? Where is that on this chart? A senior nurse, potential beginning of a serious problem. Nothing. It's not put there. No mystery, it's not there, it isn't.
As we carry on into that evening, dark bile continues to be produced. It's being produced across that evening. If we go to the next chart that would follow on at tile -- before we do that, just pausing there, while we're still on 12 June, can I show you next, ladies and gentlemen, the radiograph we've looked at, which actually is from about midday, 12.36. Probably taken, can you see where it's got "long line" at 12.00? Something about long line maybe in conjunction with that, I don't know, but a radiograph was taken at 12.36. So we are going to come out of this and look at that picture. Page 1996, please, Mr Murphy.
Now, this is the picture, the radiograph, that Dr Evans, Dr Bohin and Dr Marnerides have all said gives evidence of harm being done to [Baby C]. It's harm. It is, they say -- they regarded it as a suspicious event, which is air forced into the abdomen. That is their view, expert view. If we look at the commentary that goes with this, if we scroll down to the next page, 1997, this is the line:
"There is now marked gaseous distension of the stomach and proximal small bowel."
It might be all coming back, I don't know, but the whole point is -- another issue here is "proximal small bowel" means it hasn't gone all the way into the intestine. Something has happened which means the air that has gone in has stopped part-way through the bowel. This is important when we come to the question of whether there'd been a blockage there, which we spent some time looking at.
But let's just take this step by step. Marked gaseous distension of the stomach, something that all three of those key experts regard as suspicious and indicative of a harm event, one taken when Ms Letby was not there, playing no part in what happened. The timing of this is actually, it seems, a couple of hours before we get into the period where Yvonne Griffiths' observation about bile on the blanket or on the cot, which could be a vomit, and then dark bile commences at about 18.30. We suggest you, we, are doing a better job here at knitting this together than anybody was at the time.
But that's where we are there. Assuming that this isn't harm, and we don't suggest it was, it shows, doesn't it, this bit about the X-ray and what the experts said, beyond reasonable doubt, how wrong those three experts are capable of being on the question of what abdominal distension is consistent with harm and what is not? Please carry that forward, ladies and gentlemen, as we begin to go into territory in a case where they are identifying gaseous distension that is a harm event all over the place. This is proof that they get it wrong. Of course we know, we say, the reason this never went on to that table and isn't in this case, you know what I'm going to say, because Lucy Letby wasn't on duty. You know what would have happened if this had happened and she was the nurse responsible for [Baby C] at this time, and that is all it has taken in this case for a number of the charges that you are dealing with.
We'll continue moving through how [Baby C] was. I'd be grateful, please, Mr Murphy, if you could now go to the next sequence on the care chart at tile 44, please. At this point we are going through now from the night of what was the 12th into the 13th, into the 13 June, which is the day leading up to [Baby C]'s collapse and then, sadly, his death in the early hours of the 14th.
We can see throughout that day, under the output column, entries, certainly for bile, with different nurses. We've got JW, Joanne Williams, in the afternoon part of the day, looking after [Baby C]. Entries for dark bile there, haven't we? It may not be a lot but it's consistent, it's a tiny baby. And then it goes on to when Sophie Ellis took over, leading up to the time of the feed, and we have green bile at 23.00, which is just before his first feed. So this is the picture on that chart.
We submit to you, as we did to witnesses, that this is a genuine concern and the evidence of Dr Sally Ogden, who gave evidence on 27 October, and some of the nurses who gave evidence, was in agreement with that. And that dark bile accompanied -- thank you. Dark bile accompanied with vomiting, if it is, which happens at least once and maybe twice, if Yvonne Griffiths' record on bile in her notes is correct, bile on the blanket, that can be really serious.
Of course, a baby doesn't just bring up dark bile for what is verging on -- what is a 24-hour period for no reason. And it should be a concern, shouldn't it? We shouldn't need experts to tell us that. It must be blindingly obvious.
Dr Ogden in her note on the morning of 13 June had marked "very dark bilious aspirates". And I asked her about that, about what that was. I asked her:
"Question: Do you agree that dark bilious aspirates are a cause for some concern?
"Answer: Yes.
"Question: In term of direction of travel, it's not such a great direction. If we're starting in a good place, it's not such a good place, is it?
"Answer: No, it's a concern that those are occurring at that time."
She was talking about in the morning. Of course they carry on, don't they. I asked her if dark bilious aspirates were a red flag in terms of what needed to be done and what Dr Ogden said was:
"Answer: It was certainly a worrying sign that would need more investigation.
"Question: Just to help us with why it's worrying -- first of all, in a baby who may be at risk of NEC, it might be a sign of that, mightn't it?
"Answer: It could be, yes.
"Question: It could be a sign of some obstruction in the gut, couldn't it?
"Answer: Yes.
"Question: Whatever that is, or some other type of -- I suppose until you've investigated it, you don't know what the problem might be.
"Answer: No."
Well, we were getting there, ladies and gentlemen, in the evidence, with Dr Ogden at least, because our suggestion to you is that on all the evidence, it's a simple suggestion, [Baby C] merited closer care and investigation than he received.
Joanne Williams in her notes at 16.19 on 13 June, so getting into that afternoon, recorded how [Baby C] was, she identified aspects that showed he was stabilising but said:
"Do not want to push [Baby C]."
Dr Gibbs was cross-examined also about dark bile and vomit and he actually volunteered that intestinal obstruction could be one explanation on 1 November:
"Question: Bile plus vomit, dark bile plus vomit, is a red flag, isn't it?
"Answer: Bilious vomiting in a young baby, yes, may indicate intestinal obstruction, it may. It doesn't always but you have to consider the possibility."
He volunteered that, I hadn't even asked him that at that point. Not in that sequence of questions:
"Question: It may indicate intestinal obstruction. For that reason if a baby begins to vomit bile or dark bile you might even consider speaking to a paediatric surgeon, mightn't you?
"Answer: I'd investigate the baby first and then talk to the surgeon."
So we have an X-ray showing, we say, how air in the abdomen didn't move beyond the small intestine. We went over the structure of the intestines with Dr Gibbs, who said they were open pipes through which air under pressure will move and it should keep moving. Of course Dr Marnerides later on said maybe not, that doesn't follow because there's a pyloric -- there's a valve there which could actually stop the air from moving.
Well, two points. He said that, he's the pathologist, he's the only person to say that but he said that. But secondly, if that's right, if that's right why doesn't that happen on all the other abdominal imagines [sic] we've been given if Dr Marnerides is right if that explains this? We should have loads, shouldn't we, if there's a valve there that stops it moving and we don't. It's just something he came up with. Why is it only in the case of [Baby C] that it's necessary to suddenly have a prosecution expert who explains, oh well, it doesn't always move through the system because it seems to have done elsewhere. If it's being forced in, why doesn't it? He says there's a valve there that would stop it. Well, we're going to come back to what Dr Marnerides says about gastrointestinal blockage after lunch, ladies and gentlemen.
But we have the picture developing and on top of that, you may recall, 3 days it seems without [Baby C]'s bowels even opening. The fourth day they didn't. They never did. He never even passed meconium. Something that seems to have caused no particular concern to the clinicians at the hospital.
Dr Bohin and her attitude on this case. She was firmly set against suggestions we made that there were significant problems with [Baby C]. Her view was that [Baby C] was managing well. So it follows it was of no concern to her in terms of relevance to what happened that he never left intensive care, that he never in fact breathed without support for more than a few hours, that his CPR [sic - CRP?] levels at a certain point had risen, that he didn't open his bowels, that there was dark or black bile, that he appears to have vomited at least once, and that black bile was produced consistently right up to the hour or so before death, and that he had pneumonia on post-mortem.
Her view is he was managing well. We say that's symptomatic of an attitude that is simply set against us. She had the gall to imply, and we say that, that where the nurses had recorded dark bile repeatedly they probably got that wrong, they could have got it wrong, that it was blood, like somehow that's meant to be better. How on earth is that better as it happens? But what a thing to say. She's not there. One minute we're being told these are experienced nurses who know what they're doing and they've recorded consistently dark bile, and Dr Bohin, rather than accept what the consistent records of the nurses say, rather than do that simply raised the possibility that we're dealing with blood actually instead.
That is an extraordinary dismissal of the evidence of the experienced nurses who were looking after [Baby C]. It also demonstrates again, rather like, "I don't see [Baby A]'s respirations rising", a determination not to accept what is before us in the evidence where that is capable of assisting the defence. That must be the explanation, displaying, we say, remarkable contempt for the nurses' ability to distinguish between dark bile and blood, like they wouldn't be able to tell the difference, but Dr Bohin, years later in this courtroom, can and tells us we possibly or probably got all that wrong.
You'll remember -- or you may not remember, I'll remind you, ladies and gentlemen -- in the case of [redacted], where there were three occasions when the nurses noted bilious aspirates, in due course he was sent for -- that was a cause of concern. It was a cause of concern. And talking about [redacted] in that case, Sandie Bohin was ready to say that it was right to take that seriously, and this is what she said:
"Because bilious aspirates can indicate serious gastrointestinal pathology in the case of the newborn."
So far as the defence were concerned, that wasn't as relevant in the case of [redacted]. But why not just say that then in the case of [Baby C] where it is relevant to the defence case? Why not say, "Bilious aspirates can indicate serious gastrointestinal pathology in the case of the newborn"? That's all we're asking. So it's evidence that can be given on [redacted] but doesn't apply when we're dealing with [Baby C].
I'll explain, ladies and gentlemen, just before we break, why it is that we make so much of this point. It's not because the defence are saying necessarily this explains what happened, although by the same token it may do. The burden isn't on the defence to do that, the burden is on the prosecution and it never moves.
But why this is important is, first of all, if we are right that there was a problem with [Baby C] and one that was remaining, it does indicate complacency or missing it or a potential lack of care in the case of [Baby C], which is an important theme in this case generally. It may also contribute to his condition when he collapsed and couldn't be resuscitated. We say also it shows, this issue and their reaction to it on behalf of the prosecution experts in particular, shows their unwillingness to accept reasonable conclusions to be drawn from the evidence.
I'll just deal with Professor Arthurs if I may, my Lord, and then we can move on to the next part after lunch. Is that all right, ladies and gentlemen? So what Professor Arthurs said because what he said was significant, although perhaps not in the way that he thought.
I'm going to ask Mr Murphy if we could put up again the radiograph at 996. This is the one from 12 June and the one where we were investigating whether it shows or suggests an intestinal blockage because the air never got as far as the large intestine, it just went from the stomach and the small intestine.
Professor Arthurs was asked about this by the prosecution and the significance of there being no gas in the rectum. He agreed, as you look down you can see there's no gas down there. He said on 11 November:
"If you see where the legs are, you can imagine, if you imagine where the two legs are coming in, in between those would be where the rectum comes out, so an observation has been made there isn't any gas in that particular location. So that's relevant if [Baby C] were a newborn who had never passed any faeces, meconium, and that this was his first X-ray because that might suggest there's a blockage in the bowel."
Yes, say the prosecution.
Professor Arthurs said:
"As we know, that's not the case, so the presence or absence of gas in a baby who is passing meconium freely has almost no relevance."
In other words, Professor Arthurs was saying if a baby hasn't passed faeces or meconium this could be relevant, it could show a blockage, but his understanding was that plainly [Baby C] had been doing, so he said this is of no relevance. So I asked him in cross-examination to explain whether this, what we're seeing, could be indicative of an obstruction or a twist and he said he didn't think it fitted the clinical scenario because he believed [Baby C] was 4 days old at this point and that for a baby who hadn't had his bowels opened for 4 days that would be in the clinical history, his point being that if a newborn baby had not had his bowels open for 4 days that might fit the clinical scenario of obstruction. But again, there's nothing in the clinical history saying he hadn't, so he didn't think that believed (sic) to [Baby C]. Well, he wasn't seen, of course, by a consultant until 13 June and whatever's written in the clinical histories, as a fact it seems, there is no record of him ever opening his bowels or passing meconium, so Professor Arthurs' interpretation or assumption about the clinical records was wrong.
He couldn't have looked at what the notes did or didn't show. At the time of that radiograph, [Baby C] was on day 3 of life, no record of bowels being open at any point up to then or indeed afterwards, and therefore on the evidence of Professor Arthurs, given [Baby C]'s clinical history, this is actually consistent with obstruction. He said it would be consistent but not in a baby that had passed faeces or meconium. Well, it is, isn't it? You may well think in any event to those treating him and looking after him, if his bowels had never been open, that would be an elementary clue to a problem, but it plainly wasn't.
After lunch, we'll have a look at what Dr Marnerides said on behalf -- when called by the prosecution on the subject of blockage and [Baby C]'s bowel.
But my Lord, can we stop there, please, for now?
MR JUSTICE GOSS: Yes, certainly. Ready to resume at just after 2.05, please. Thank you.
(1.04 pm)
(The short adjournment)
(2.04 pm)
MR MYERS: Ladies and gentlemen, I'm going to turn to -- on this issue of [Baby C] and whether or not there was a gastrointestinal blockage, let's look at the post-mortem evidence.
When Ms Letby was cross-examined about this by the prosecution, they said to her:
"Do you remember the evidence of Dr Marnerides, the pathologist, who said that the histology shows that [Baby C] did not have any bowel issue?"
And Ms Letby said yes.
And certainly so far as Dr Marnerides is concerned, that's right. That's one part of the post-mortem evidence from their expert witness, pathologist, who you'll keep in mind didn't see [Baby C] or perform the post-mortem on him.
Can I remind you of the agreed evidence from the pathologist who did perform the post-mortem? You may think this is significant. Perhaps this is one to turn to the agreed facts, please, ladies and gentlemen, which you'll have in jury bundle 1, divider 3. Let's have a look there and go to page 8, if you would, please, agreed fact 21.
These are the agreed facts, the agreed evidence relating to [Baby C] here, and you'll see, small 1, that George Kokai was the consultant paediatric pathologist who conducted the post-mortem examination at 10.00 hours on 16 June. He made a written report and significant is the entry under "abdominal cavity", which is the part of this agreed fact on this page. He recorded the following:
"All abdominal organs show normal anatomical position. Gall bladder, extrahepatic biliary ducts and pancreas are normal. The stomach, all loops of bowel and mesentery show normal rotation and pattern apart from descending colon, which crosses the midline into the right lower abdominal cavity and connects to the sigmoid colon, which is in a normal position. The serosal cover is thin, shiny and translucent."
Then Dr Kokai records:
"The stomach contains large amounts of bile-stained secretions. The remaining bowel is empty. The colon contains meconium."
You'll remember meconium is the substance in the bowel that is there that passes out in a newborn baby first before faeces passes through. So that's significant, isn't it, in light of other things that we've heard?
This is agreed evidence and we've heard a lot from the prosecution about the strength of agreed evidence.
This is agreed evidence that:
"The stomach and the bowel loops are normal apart from the descending colon [which you saw is the lower part of the bowel, the large intestine] crossing the midline into is the right lower abdominal cavity."
We looked with Dr Gibbs at that image of the bowel and where the large intestine almost goes round, rather like a square, going round the outside and coming down the left-hand side.
But this from the post-mortem:
"It crosses the mid-line into the right lower abdominal cavity."
This is agreed evidence from the pathologist who performed the post-mortem. Dr Marnerides refused to accept this. He also refused to accept where it says "the remaining bowel is empty". He says there is gas in the bowel.
Here, Dr Kokai says:
"The stomach contains large amounts of air and some bile-stained secretions, the remaining bowel is empty."
The reason I say he refused to accept this is that his evidence is that George Kokai regarded this as -- or this bowel was normal, was Dr Marnerides' way of putting it, it was normal. It was normal.
Well, you can read it, the language is plain. According to Dr Kokai this is not normal, that's how he puts it. So whatever Dr Marnerides means about normal, that isn't the language used by Dr Kokai.
As for the question of gas in the bowel or distended bowel, that is linked to a photograph Dr Marnerides has seen. It's not one of the ones, so far as I can see, that we have. But whatever he says he sees on that photograph, and indeed it may be this is how he says that it has been mistaken for the bowel crossing, because it's distended, but that isn't the evidence from the pathologist who conducted the post-mortem. It doesn't matter how Dr Marnerides explains around this, that pathologist looks at the physical structures, has described how it crosses and says that is not normal because he talks about "everything else is normal apart from". So it's not normal.
And the only place where he identifies air is in the stomach, ladies and gentlemen, and we do ask you to note this carefully:
"The stomach contains large amount of air; the remaining bowel is empty."
So whatever Dr Marnerides says about his views looking at other material afterwards, that isn't what the pathologist says, that somehow there is a large amount of gas there. But of course that's significant because one mechanism that eventually Dr Evans came to, and which Dr Marnerides also refers to, is that gas was somehow introduced which caused the abdomen to distend and collapse to follow. But that's not what's found in the post-mortem.
This agreed fact, ladies and gentlemen, shows the importance of looking at the whole picture. Beyond the snapshot of the pathology from Dr Marnerides and the dark bile aspirates for 24 hours, we have bowels not opened, we have the radiograph with that curious feature of the air just stopping, we don't see it anywhere else, we have the post-mortem from Dr Kokai, and the opinions of John Gibbs and Professor Arthurs, actually, as to the possibility of blockage. We say that, in combination, that is powerful evidence, actually, from which you can conclude there was a blockage and there should have been investigations and something should have been done about it.
Dewi Evans. His position before he came here and gave evidence to you, based on eight reports over 5 years, was that whilst he was ready to identify deliberate harm by air being forced down the NGT on the 12th, which is that time when Ms Letby was not on duty, in his reports he hadn't identified specific harm and indeed he was in readiness to say that it may not be possible to say what caused [Baby C]'s collapse and ready to say infection could not be excluded. And nothing in his eight reports pre-trial over 5 years suggested air had been forced down an NGT. He just came out with that when he gave evidence when the prosecution were taking him through his explanations, just came out with it on the hoof, it might be said.
The prosecution in closing to you last week conceded that there could be criticism of Dr Evans for not putting in his report that opinion because there should be prior notice. But actually, it doesn't come down to some technical rule about what experts should put into reports, we say, and is far more significant than that. This is to do with Dr Evans making up explanations as he went along. That's exactly what he did and he did that on this occasion. We say that is because he's biased and he's not independent and he's seeking to find theories that can support the allegation.
When I cross-examined him about this -- you may recall, you may not -- I asked him to tell you what the evidence was for air being forced in and the diaphragm being splinted by air being put down the NGT. This is on 1 November. I asked him repeatedly, what is your basis for saying that, because he'd only just said it for the first time in evidence that day with the prosecution. He just kept on saying:
"Baby collapsed and died, baby collapsed and died."
Well, we know, sadly, that is what happened. But what's the basis? He kept repeating that until he eventually, suddenly, literally came out with air embolus. You may or may not remember it but he just came out with it there and then without identifying any evidential basis at all. That is what we are dealing with.
Nothing in his eight reports over 5 years and he comes out with air being forced down the NGT for the first time when the prosecution ask him questions. When I pushed him to explain what's the basis for that all he could do is turn round and say, "I think also there's an air embolus".
Dr Bohin agreed that [Baby C] had pneumonia at the time his death. She agreed on 2 November that could have made him less responsive to resuscitation. She agreed the pneumonia was a contributory factor to death because it may have made him less responsive. But then I hit the brick wall when I suggested that that meant [Baby C]'s collapse and death might have been caused by something that might not have been fatal in itself but for the fact it was combined with the pneumonia, some problem with his condition plus the pneumonia meant he collapsed and couldn't be resuscitated. Our point was that if pneumonia made him more vulnerable, another medical problem could surely combine with that to cause death, even if it wasn't or didn't do that on its own, but she absolutely would not have that and we do not see why not on any logical basis, save that she would not agree with the suggestion we were advancing which raised the potential for this to be something other than harm, even though she didn't identify any mechanism of harm as it happens. She was set entirely against the possibility of an abdominal blockage, against what we say is the clear weight of that evidence and she preferred instead, and relied upon, Dr Sally Ogden's note of bowel sounds that showed there was no blockage, tinkling bowel sounds.
We say really this required proper examination and a proper review and all the signs were there that there was a serious problem with [Baby C]'s intestine and it should have been properly checked and the evidence, we say, supports that.
He was a very poorly little boy. We say he shouldn't have been at the Countess of Chester, he should have been transferred out with the problems that he had.
You've looked at this now, ladies and gentlemen, the record-keeping was sub-optimal. The accumulation of evidence, we say, plainly indicated an intestinal problem and the failure to deal with that was plainly sub-optimal. We say he was unwell over the period of his short life and died with pneumonia and an underlying bowel problem that is consistent with all the evidence and the evidence of the post-mortem from George Kokai. So there is no basis to be sure, no basis to be sure, that a non-medical explanation applies and that harm was done. And the two lead experts, one of them doesn't identify mechanism, Dr Bohin, and the other one, Dr Evans, literally came up with them as he went along, making them up on the spot.
We say that the evidence in this case goes further in exonerating Ms Letby when we look at what happened. This is the business of who was in which nursery at the time that [Baby C] collapsed. We say Sophie Ellis should not have been looking after [Baby C].
No matter how this is dressed up, how it's dressed up, whatever has been said about Ms Letby and her views about who should be doing what, Sophie Ellis was relatively inexperienced, she wasn't qualified in a specialty, and she was put in charge of a very fragile little boy. Plainly Ms Letby took exception to that in that she complained about it and you may think someone who takes their work seriously and appreciates the challenges of looking after unwell children may make an issue of that. [Nurse B] says it was all right because Mel Taylor was in that same nursery and on hand and that also, of course, she was available, although we point out if it takes up to three nurses to keep an eye on [Baby C] because the designated nurse is insufficiently experienced, which is what this comes down to, that is a very poor state of affairs indeed.
The desaturation and collapse in [Baby C]'s case, ladies and gentlemen, follows the one and only feed he received from Sophie Ellis around 11 pm. So again, we're in a position where there are striking coincidences in this case, not the ones the prosecution refer to but other ones. It's a feed, in fact, that isn't recorded in any chart, it's made a note of in her nursing notes, although when you look at them on tile 231 for your reference, they are confusing because they're spread across different entries and different times after the events.
One of them came some days after the events but we finally got to the point with Nurse Ellis where she was describing two episodes in her evidence and the picture painted by her was that she'd been out of the room on one occasion when Lucy Letby was in there and [Baby C] desaturated and that Ms Letby had been very close to [Baby C] on the second occasion when the collapse began that led to his death. So in other words, she put Ms Letby there at a time when she says she was not there at the time that led up to that final collapse. That was the effect of the evidence of Nurse Ellis and you'll remember that was the version of events that the police followed when they interviewed Ms Letby and we've looked at that. I'll mention that again shortly.
She didn't say she was seeing Ms Letby do anything wrong but, not for the first time, as we see in this case, we see certainly the effect of this being that blame and suspicion are nudged her way. This time, certainly the nurse who is meant to be looking after [Baby C] and had fed him is instrumental in that, however that happens. It's her account that puts Ms Letby there.
Is that the only account? Because we need to look at all the evidence, don't we? Mel Taylor was on duty in that nursery with Sophie Ellis. When the prosecution asked her questions, she said she didn't know if she'd been in the nursery or not when [Baby C] deteriorated, but that Lucy Letby was already at the incubator when she approached and she didn't remember anyone else being there. This is the evidence she gave to you in the trial.
She said the only person she remembered there was Lucy Letby and she thought that Lucy Letby had inserted the Guedel airway. So actually, that has the effect, doesn't it, of coming alongside what Sophie Ellis was saying? Sort of backing-up what Sophie Ellis was saying.
Strange then, because we got to this when I cross-examined Nurse Taylor, strange that when she spoke to the police back in 2018, much closer to the time these events happened, she told them that when [Baby C] had collapsed she was pretty sure she was there and that she was feeding another baby. Why didn't she tell you that? And she told the police, get this, it was Sophie Ellis who called her over. And she had nothing to say to the police about Lucy Letby.
All right? So at the time she made her statement in 2018, she's there, and she has Sophie Ellis calling her over. That contradicts what she said in evidence to you. Why has she changed that account like that? Literally swapping Ms Letby for Sophie Ellis. Why?
I asked her and she was utterly brazen about it. That's how it is, she wouldn't give an explanation for how she came, in effect, to reverse this, we say, when she came to give evidence 4 years later, reverse who was there. But there is no doubt that in 2018, she told the police it was Sophie Ellis who had called her over and that she, Mel Taylor, was there and she didn't mention Lucy Letby at all. So whatever has gone on and however it happens, and there could be any number of reasons, and maybe we should not and we do not speculate, but she's changed that account or the account has changed in a fairly significant way because it puts Lucy Letby into the position where she is in the room. That isn't what she said when she first spoke to the police. She reversed it round.
That's not the only evidence of this, fortunately. Fortunately, we have the evidence of [Nurse B], which we say settles this, if that's necessary. She gave evidence on 31 October last year and what she said to you is fairly consistent with what she said to the police in 2018. I asked her about it. It comes to this. She had been dealing with a baby we've got initialled as JE in a different nursery with Lucy Letby. JE was Lucy Letby's baby.
Some time between 10 and 11, she was called to assist -- that was her recollection of time -- [Baby C]. So she'd been with Lucy Letby looking after JE, she gets called to assist with [Baby C]. She went to nursery 1 where Sophie Ellis and Mel Taylor were Neopuffing [Baby C]. No suggestion Lucy Letby was there. She wasn't because they'd been looking after baby JE elsewhere.
When asked questions by the prosecution, she made it clear that she and Ms Letby had been occupied in trying to find a doctor to do a septic screen for JE. That's what they'd been involved with. Ms Letby therefore is in no way near to nursery 1. And she described, [Nurse B] did, assisting Melanie Taylor and Sophie Ellis and she told the police that some time later she became aware that Lucy Letby was in the room. That's that. With [Nurse B] when it happened, which would explain why in Mel Taylor's original statement to the police Lucy Letby isn't there, she was with [Nurse B]. [Nurse B] went over to assist and at some point after that is aware that Lucy Letby has gone there too, but not in the room when it happened. That follows from what Mel Taylor first said to the police and how [Nurse B] has always described this.
So how Mel Taylor comes to change it years later so it has the effect of coming into line with what Sophie Ellis was saying and putting Lucy Letby there, pretty breathtaking, really, isn't it, how that has happened? You've seen that unfold in front of you.
The evidence, we say, taken as a whole puts Lucy Letby somewhere else when [Baby C] collapsed. It also shows how it can happen that witnesses change their accounts in the case of Mel Taylor, Sophie Ellis, no, she's always said, she wasn't there, but Mel Taylor's changed, as it happens, coinciding with this trial, with Sophie Ellis'.
None of this was unravelled before you in the review of the evidence from the prosecution. They, rather like the police in interview -- I am not being critical of them, the police are working with the evidence they have -- they proceed just on the blunt statement of Sophie Ellis without everything else and without regard to what [Nurse B] said or even Mel Taylor at that time.
You saw in the interviews, and it was in the [Baby C] interview at pages 11 to 17, how there's a whole series of questions of Ms Letby, all based upon the assumption that what Sophie Ellis said is right, even though it's inconsistent with what Mel Taylor was saying at that time and [Nurse B]. We've been through this, I'm not going to go back to it because you have the point, ladies and gentlemen, you have the references, but we say it's a feature of the interviews, the police are working with what they had, but actually it can lead to some unfairness is Ms Letby is being given facts that she is relying on as if they are established and then she is asked questions about them as the point of departure for that questioning, which is what was going on and that's how it's been used in the case. It can lead to unfairness, not because anyone's trying to be unfair with that questioning, but because it gets taken out of context and used to her disadvantage in this trial. That's where we say used in that way it becomes unfair.
So in conclusion, ladies and gentlemen, looking at the evidence, balanced, fairly, we say Lucy Letby was not there when whatever happened happened and that's based on evidence, unless we're going to just accept the fact that Mel Taylor can change what she said, however or why ever it happened.
There is no consistent medical explanation for what did happen on the 13th, although we say the evidence of failing in care is powerful and that [Baby C] was a very poorly little boy with pneumonia, with some sort of abdominal issue that was never fathomed, who became very unwell and you can see that happen over a period of time, and there is nothing, nothing, that establishes that Ms Letby was involved in harm, there really isn't, or how she could have been when we look fairly at the evidence.
I'm going to move now, ladies and gentlemen, please, to count 4, [Baby D]. [Baby D] was born on June 2015 at 16.01. Her gestation was 37 weeks and 1 day, which makes her one of the older babies in this case and her weight was 3.13 kilograms.
She was born on 20 June at 16.01. On 22 June, at 01.30, she collapsed and there was discolouration associated with that collapse, but she made a good recovery.
An hour and a half later, at 3 am, she collapsed again and there was some discolouration associated with that collapse, although there was less discolouration that time, and she made a recovery. Then on 26 June, 45 minutes later, she collapsed, no significant discolouration identified, and she did not recover and she died at 4.25.
Dr Evans and Dr Bohin say that this was the result of harm inflicted with an air embolus or, I suppose, air emboluses because there's actually three collapses that we're looking at over a period of about an hour and three-quarters. That's nearly 2 hours and 15 minutes.
Well, as an introduction to this, fact: [Baby D]'s mother, [Mother of Baby D], her membranes ruptured 60 hours before [Baby D] was born.
Fact: in accordance with the hospital's own guidelines she should have been given antibiotics but they failed to do that. That is sub-optimal.
Fact: save for Dr Bohin, all witnesses who were asked agree that by 12 minutes of age [Baby D] was displaying signs of being ill or seriously ill.
You'll remember it's described at 12 minutes how she was floppy and appeared to be lifeless. Dr Bohin was inclined to blame or explain that on the way her father was holding her. You recall, she said parents/fathers can sometimes do that.
The evidence was absolutely plain and I'll remind you of it: this is not to do with the way [Baby D] was being held, it's another example of an obstructive response to what the evidence is from Dr Bohin. The evidence is very clear: [Baby D] was very unwell at 12 minutes of age, very unwell.
Fact: she should have been given antibiotics from that point, or as soon as possible afterwards, but that didn't happen for almost another 4 hours. That is sub-optimal. That falls below the appropriate standard of care.
Fact: maybe in consequence of all of the above, [Baby D] was born with pneumonia.
Fact: [Baby D] was so ill that by about 10 pm that night she had to be ventilated to enable her to breathe properly.
Fact: she was on the ventilator for about 11 hours and the following morning she was taken off it. But then when you go through, and we went through the notes, there were continuing signs, various signs of respiratory difficulty during that day until she had to be put back or put on to CPAP.
Fact: she desaturated when taken off CPAP at about 7.15 that day; that's at tile 158, ladies and gentlemen. We perhaps don't need to go there, it's an entry I think by Dr Rylance.
Fact: measurements to monitor her condition indicate some deterioration later that evening, something ultimately recognised by those caring for her, I'll come to this shortly, something Dr Evans and Dr Bohin flatly refused to acknowledge.
She suffered a desaturation at 01.30, from which she recovered quickly, although the consultant in charge, ladies and gentlemen, Elizabeth Newby, was sufficiently cautious to say, and she said this when explaining the situation on 9 November to you, that:
"There was a low threshold to intervene by intubation and ventilation should things deteriorate from a respiratory point of view."
I'll come back to this in a moment but we say that's significant. After that first collapse, it was discussed between Dr Newby and Dr Brunton how to deal with [Baby D] and one of the things they discussed was what respiratory support she should have and the decision they came to was since she was saturating in 100% air on CPAP, that was fine as long as everything was all right, but there would be a low threshold to intervene if she deteriorated from a respiratory point of view; she said that on 9 November. That was the position around about 2 o'clock. All right? So that was the decision, that's what the plan was.
At 3 o'clock in the morning, [Baby D] suffered another desaturation similar to the first from which she rapidly recovered. But at that point, this is on tile 236, Dr Brunton took the decision to take her off CPAP. And within half an hour of that, she collapsed fatally, after which, at her post-mortem, fact, she was identified to have pneumonia in her lungs with acute lung damage.
So ladies and gentlemen, on the evidence, very ill from the outset. Actually, by any ordinary standard, outside this trial, in this courtroom, where would you say a baby being born with pneumonia was healthy? Seriously? The things you or we are expected to believe. That must be unwell.
And the account given by [Mother of Baby D] of what happened leading up to her birth and at her birth was grim indeed and the descriptions of [Baby D] and how she was at 12 minutes after birth.
Whatever Dr Bohin had to say, we say deliberately to minimise the impact of that, but you'll be the judges of that, ladies and gentlemen, Dr Rylance agreed that from the point that [Baby D] collapsed at 12 minutes, given the history of ruptured membranes and everything we know, the right course would have been to prescribe antibiotics immediately, she said that on 8 November, because, as she said, the purpose of antibiotics is to treat and reduce the risk of infection, and that didn't happen for hours.
So we say, again, that for a prosecution case that relies almost entirely on coincidence, it's a bit much if you're not asked to pay attention between the obvious link we say between the failure to give the mother antibiotics and the daughter antibiotics, the membranes having ruptured for 60 hours before birth.
The 36 hours during which [Baby D] was alive, on any sensible view again, we say, are characterised by respiratory problems. Ladies and gentlemen, if you're able to, you may feel you know the exhibits well and you don't need to, but you have all this material with you and you're able to look through and perhaps go from clinical note to clinical note as you scroll through the sequence or look at the nursing notes. You're probably familiar with the charts now. You have a look at that and see if this is a baby who is breathing in any way that you would consider, because you can now in light of all this, acceptable and problem free. Because again, I repeat what we said yesterday, please judge our submissions by the evidence.
If you look at the evidence and you're satisfied, "No, no, she's fine, she's breathing fine, I don't know what the defence are on about", that's the end of our point, isn't it? But if you look at the evidence from the time of birth to the time of death and you see there are breathing problems, that means the insistence by prosecution experts that, "There's no real problem, nothing to see here, there's nothing wrong", is wrong. You can look at the whole picture in that way and we say it most definitely is wrong. And it is very unfortunate decision, perhaps, that after that second collapse when [Baby D] had already demonstrated, if we can put it that way, the condition she was in, they say she's under attack, I will come to that.
But if a baby like this has just collapsed twice but then been resuscitated pretty well it seems or revived, sorry, recovered, first of all, it is surprising she was taken off CPAP after what had happened and particularly so when Elizabeth Newby said that she had discussed this with Dr Brunton and there was a low threshold to intervene given that she was on air via the CPAP. That's fine. But that would change if there was a deterioration in her respiratory state. That's what they agreed and there was change, but they didn't intubate, they simply took her off CPAP. That's got to be pretty significant, hasn't it, for a baby like this then to not have breathing support at that point? And then the collapse, the final collapse, comes 13 minutes later.
Dr Marnerides did not perform the post-mortem, that was done by Dr Jo McPartland and her evidence was read to you and that was agreed fact 22. It followed [Baby C]'s and, again, I apologise about the picking up and the putting down of the files but it's perhaps worth going back to this, ladies and gentlemen, and we ask you to consider this when you're looking at the entirety of the picture later on.
It's at page 9 and it's agreed fact 22. There are a couple of matters here in addition to the post-mortem findings that you may find of assistance more generally in the case, ladies and gentlemen. We're going to come to that as we read through.
The first part of this agreed fact paragraph 22, page 9, identifies that:
"Jo McPartland, consultant paediatric pathologist, conducted the post-mortem [and the time and the place]."
And then extracts of the report are set out here and of significance, of course, is what we have under "Lungs":
"Patchy acute pneumonia, most prominent within one of the right lung samples. Hyaline membranes present, indicating diffuse alveolar damage."
She goes on to identify the rupture of the membranes, it says 36 hours before birth, but that of course was corrected:
"After that, the collapse of the baby soon after birth..."
So she didn't have any difficulty identifying that, only Dr Bohin did:
"... followed by continuing [continuing] respiratory problems and the histological pneumonia, which is quite convincing. I think it's likely that the pneumonia was already present at birth."
She deals with the disposal of the placenta, which she say is unfortunate. Then this:
"Although [Baby D]'s CRP was low, in early onset sepsis the sensitivity of CRP in detecting infection may be as low as 22% and therefore does not rule out infection."
Pausing there, this is agreed evidence. So it seems the business of CRP identifying infection is by no means perfect. It may not always reflect it.
Then over the page:
"Microbiology tests were negative in this case but this is often the case after antibiotic treatment and does not rule out infection, which is histologically proven in the case."
Pausing there, ladies and gentlemen, keep that in mind if you are able to when other cases are identified and there are no microbiology tests indicating -- or there are microbiology tests which are negative but there has been antibiotic treatment. That's why they're negative.
She concludes here:
"Dr McPartland also recorded the following summary findings:
"'1. Early neonatal death after 36 hours of age.
"'2. A normal growth and developed baby girl with weight on the 91st percentile, length on the 25th percentile and head circumference on the 98th.
"'3. Acute pneumonia with hyaline membranes indicating alveolar damage.'"
Those are the findings from the pathologist who conducted the post-mortem.
Despite that, the opinion of Dr Marnerides is that this is air embolus. He preferred air embolus. We say I bet he did. He preferred air embolus. So in other words, despite the pathology of what there was, he preferred to go with Dewi Evans and Sandie Bohin about what there wasn't evidence of, we say. And he was clear when I asked him questions about this that whilst he accepted pneumonia was there and at one point had taken the view that it could be instrumental in death, in fact given the views of Dewi Evans and the other clinicians, he now came to the view that pneumonia could not account for this because [Baby D] was doing so well.
There you've got the mixture of how he takes clinical findings and then incorporates them with the pathology. So there is pneumonia but his view was:
"Taking in mind what the clinicians have said about how well she was doing, I don't see that that can explain it."
Well, that goes back to the question of you take a look. We submit to you, ladies and gentlemen, on this evidence, she really was not doing well with respiration.
What is the evidence of air embolus then? Dr Bohin on air embolus. Her view was that this couldn't be explained by infection, it had to be something "unusual and odd". And she went with Dr Evans with air embolus, relying upon discolouration, how suddenly this happened. We pause there, suddenly? There's three. What's sudden about two and three, for example? How suddenly it happened and that [Baby D] had been distressed, which at this point, and for the first time in the case, Dr Bohin revealed was a sign of air embolus, not one we had had before this point -- as you have seen, the air embolus theory is nothing if not flexible -- and there was also air in the great vessels.
And so have we dealt with that, ladies and gentlemen. We know the description these experts started with as being the hallmark of air embolus, we know it. It's not our fixation with it, it's what they said.
When you look at the notes, nothing here matches it (inaudible) if anyone says unusual, odd, strange, it doesn't. Caroline Oakley, one of the nurses whose description of prosecution have relied upon, was pressed in examination-in-chief to enlarge upon her note. Can we put up the note, please, at tile 228? It's on the right-hand side of the long body of text.
Caroline Oakley documents in her note, ladies and gentlemen, the chronology in this case and you can see actually, as we go down, there's an entry for 01.30, which is the time of the first collapse, and then 3 o'clock and then 03.45. In the course of this she does identify discolourations to this extent. At 01.30, she puts, third line down:
"Discolourations to skin observed: trunk, legs, arguments, chin."
That's as far as that goes there. And at 3 o'clock we can see under the second line:
"Skin discoloured again but less than previously."
And then 3.45:
"No discolouration."
That seems to be the way that this was. So that's what she said at the time. You may agree nothing there, actually, to identify or base a theory of air embolus, a finding of air embolus on, there's nothing, unless we're going to say any discolouration counts and we know neonates can be discoloured for any number of reasons and we have heard lots of descriptions in this case. That's the problem: we get descriptions that are then just applied to the theory because someone has decided it's going to apply about.
Now when Caroline Oakley was examined by the prosecution she enlarged upon what was in her note and she was questioned at length about it and she came up with expressions like "red/brown". She began to give some colours and red/brown is one of them. I cross-examined her about that and pointed out that the red/brown she described in evidence wasn't in her note. And after we went round and round, and this is on 4 November, she ended up saying to me:
"I just remember the rash, I don't remember the specifics of it, I just remember it's an unusual rash."
Well, okay, great. You just remember an unusual rash. We say that is nowhere close to what you should require, ladies and gentlemen, for what the prosecution seek to prove.
And if that is what she really remembers then we do have another witness, however unwittingly, beginning to add detail years later that isn't here.
In her statement to the police, another witness who gave descriptions was Kathryn Percival-Calderbank. And in 2018 -- I'm going over these because the prosecution have given an account of these discolourations generally taken from the evidence of the witnesses but not what was said beforehand. That's what they've chosen to do, they've taken the evidence. That's fine, but we need to look at the whole picture for you to be clear how much certainty you can put on this.
In 2018 Kathryn Percival-Calderbank had said this to the police:
"[Baby D] changed colour. She'd been mottled over her trunk and legs and she'd seen that in the past with discolouration from circulation issues or sepsis but on this occasion it looked unusual."
She confirmed that on 9 November. So mottling, she had seen discolouration from circulation issues, but this looked unusual, but that's as far as that went. All right?
Now, when she came and gave evidence 4 years later, it appears that rather than, in the case of most witnesses, the common experience, which is that memory deteriorates, it had developed. It had developed and she said now:
"This seemed to be a larger, mosaic-type rash, a reddy/blue, reddy/brown colouring, vessels, oval-type markings on the skin, vessels of blood, whatever it was, they seemed to be meeting up on each other."
What an extraordinary and vivid description, yeah? Red, brown, mosaic, oval markings, meeting up with each other. How on earth does that compare with what she said 5 years before or 4 years before to the police:
"Mottled on the trunk and legs, circulation issues in the past, it looked unusual"?
That's as much as she gave to the police and 5 years later we have a very vivid, lurid description. "All those vessels", "all those vessels", how on earth did that not appear in the description to the police?
If there appears to be a theme developing, or if I sound at all repetitive with it, I'm sure you'll understand, I don't apologise for that, because this is what's happening. If it seems repetitive it is because it keeps on happening: witnesses who haven't said things at the time or not recorded them have then given striking descriptions in evidence to you years later. It's almost as if in some cases they must have been speaking with people between the time of their first account and giving evidence to you. And I asked her about that, Kathryn Percival-Calderbank, whether the extra detail was something she might have picked up from what other people had said when she'd gone back and talked to them. And actually what she said -- this is her answer on 9 November -- I asked if that had happened and she said:
"I might have done but it's also my recollection."
We are interested in "I might have done", which was the first bit that came out, "I might have spoken to other people about it", because we say that is almost certainly what has been going on here, people sharing recollections. That must be the account -- explanation in some cases for accounts changing in the way that we see.
Dr Bohin gave evidence about the discolouration and I tried to get from Dr Bohin an understanding of just what discolouration we are dealing with. I'd be grateful if you can just let me explain or repeat to you, ladies and gentlemen, how that piece of evidence went, just to remind you, because I'm going to suggest we were just locked in a never-ending circular, self-feeding theory here. Listen to this and, I'm sorry, it takes about a page, but let me you go through it. Question to Dr Bohin:
"Question: Discolouration. Discolouration can be caused by conditions other than air embolus, can't it?
"Answer: Yes.
"Question: There can be many reasons, can't there?
"Answer: Yes.
"Question: You don't actually know what the discolouration of [Baby D] was like, do you, you haven't seen it?
"Answer: No, I haven't.
"Question: You don't have a picture or a photograph, do you?
"Answer: No.
"Question: We have various descriptions from the witnesses dealing with this. You cannot say whether what one witness is describing they saw on one occasion with one child is the same as what another witness is saying on another occasion with another child. There's no way of knowing that, is there?
"Answer: No.
"Question: You cannot say or you do not say what discolouration is specifically distinctive of an air embolus, do you?"
That is by this point:
"Answer: No.
"Question: Or do you?
"Answer: No.
"Question: Right. So any discolouration then?
"Answer: No.
"Question: Come on, tell us then, which one?
"Answer: Sorry, which one what?
"Question: Help us, which discolouration indicates an air embolus?
"Answer: The discolouration described by the clinical staff, both the nurses and the doctors who saw [Baby D] with patchy discolouration that came and went is compatible with an air embolus, taking into account the clinical situation that we had."
Pausing there, I ask her to explain what the basis is and she comes to saying, well, it's based on the description given by the people, the clinicians. That is, I'm sure you can understand, entirely circular. It's an air embolus because they're describing it and I'm using that now as the guide to it. She's not measuring it against anything that could assist with this.
I'm afraid with various variations, that's where we got to, over and over again, and indeed as more and more wider changing colours became identified as relevant discolouration.
Now, you will understand [Baby D] goes through three episodes, and again, I appreciate, it seems indelicate when what we're dealing with here is so sensitive, but I had to ask the questions, so I asked Dr Bohin about the question of fatality and if an air embolus can be fatal, and we say on the background it should be, how come there were two occasions when this was not fatal? You may remember these questionings that went on. How can that be? Contrary to what we expect of an air embolus, surely, they're meant to be lethal.
Dr Bohin -- this is where we get to the wildlife. Dr Bohin sought to deal with the fact that [Baby D] suffered two non-fatal collapses despite the theory it should be fatal by talking about studies with dogs, piglets and rabbits. None of that was very conclusive. None of it gave any specificity to how this is meant to work, it didn't answer anything. But she was simply saying the facts and the figures there show it can be variable.
But ladies and gentlemen, you have nothing to assist you and we have nothing to assess that with. All we have is a baby who had three collapses, two of which mercifully weren't fatal and one of which, sadly, was. We say none of that fits with where we began. And vague assertions about dogs and rabbits, how does that give us any confidence as to what is meant to happen with a baby here?
Even the question of distress, even within this one case is just endlessly variable; okay? Discolouration is different on all three of these occasions. Why if it's meant to be the same thing? Why? The consequence of what happens is different every time. Why? If it isn't just a baby getting more and more poorly, which is what we say this is, and then a questionable decision about taking her off breathing support, we say that's the answer, but if it isn't that, then why does it keeping changing, the discolouration, if it's meant to be the same thing? Why isn't it the same thing that happens each time? And even the theory of the baby being distressed which appeared for the first time here changes, because for the first one of these events there's no record of distress by [Baby D]. For the second one there was distress, but that appeared to stop when taken off the CPAP, and Dr Brunton's view was that it was the CPAP which had been upsetting her, which is why he took her off it. So that was the explanation from the clinician, nothing to do with distress because of an air embolus or any distress that he thought extraordinary. She was upset with the CPAP, he took her off it. Third occasion, no distress. Okay?
None of them are coherent or consistent: (inaudible) discolouration on the first episode, a bit on the second, not on the third, which is fatal. No distress on the third, which is fatal. How does any of this stack up? We say it doesn't, it simply doesn't. The reason we're in this position and the reason I am going through this with you like this is because we have experts knitting together bits of available detail to meet the allegation.
Now, finally on this area, the question or the suggestion this is an unexpected collapse. Dr Rylance agreed that infection is the leading cause of death in neonates and it can develop very quickly. And Dr Newby, I asked her about how quickly babies can deteriorate and she agreed, rapidly. And it was agreed that a baby who is unwell can have sufficient reserves to keep going for a while and then they reach a point when they cannot maintain their level of functioning any longer and at that point they can deteriorate rapidly. And that's actually something [Dr A] later acknowledged when we came to the case of [redacted]. He talked about how it was possible for a baby to do well for the first 24 hours after birth but then deteriorate when the initial reserves began to run out. Such a lot of information in this case from different parts of it. But actually one thing which can assist is you can find material in one part that casts a light on another part.
We've seen -- we started with the fact, that whatever's said about [Baby D] being well all day by Dr Bohin, Sarah Rylance, who saw [Baby D], said that by 7 pm, while stable, she wasn't a healthy baby. She wasn't a healthy baby. That directly contradicts what the expert says who has been pushing air embolus, said that on 8 November.
As we move along with the blood gas picture, there was a deterioration. If you put up tile 30, please, Mr Murphy. If we look down at 1.14, please. Dr Brunton -- if we look at 1.14, there we go, we can see, the pH has dropped down to 7.2. And looking across there, the opinion of Dr Brunton was that the picture was not as good as it had been earlier, and indeed Dr Newby, 9 November, had said the readings deteriorate at 23.52 and 01.14. They may seem to be subtle changes, but there's a reason we have these. And the evidence from the clinicians is they're not so good.
Caroline Oakley, in her note at 174, had indicated they were satisfactory but in evidence when they were put to her, what we have here, she was actually good enough to accept these were not as good as they were earlier, which again you may think is interesting. If Lucy Letby had got something like that wrong in a nursing note, there'd be deep criticism of it. Caroline Oakley in her note says they were satisfactory but agreed they actually weren't as good as earlier and Dr Newby was clear with the deterioration.
Putting this all together with the picture with the breathing difficulties, this is not a baby who was doing well. She had struggled to breathe and was showing signs of acidosis before we get to 01.30. That is there, that is on his evidence. If anyone thinks about that, wherever the emotions take us, and they're powerful emotions in this case that affect all of us, we can all feel that. Wherever they take us, that's the evidence. It could well be taken, the view, that the two deteriorations, 1.30 and 3 o'clock, indicated problems in themselves.
If we go back to Caroline Oakley's note at tile 228. Enlarge that and come down to the final part of this. At 03.45, do you see:
"Monitoring alarming, [Baby D] desaturated and then became apnoeic. Called Staff Nurse Letby to help."
Let's pick this up from there. This final collapse happens, we can see from Caroline Oakley's note, at a time when Lucy Letby isn't there and at a time when Caroline Oakley is there. And if you remember, Caroline Oakley, between the second and the third collapse had decided to do [Baby D]'s cares. How wise that was having just come off CPAP, who knows, but it was a caring thing to do.
She did her cares in between [Baby D] coming off CPAP at 3 o'clock -- between then and 3.45. She was with her, [Baby D] collapsed, she called for help and it says here specifically, "Called Lucy Letby for help". Yet again we have the position where in that period leading directly up to this, looked at in this way, with this nurse, Ms Letby is being held responsible for something where on the evidence she simply is not having involvement with that baby at that point. And we submit there is no evidence that she did anything to cause this.
You have to consider this against how an air embolus is meant to act again. She's not seen to be interfering in any way. There are times when she gives assistance during the evening, as nurses do with one another. Various points have been identified, but nothing that is linked to or identified to doing harm and staff are about during the period. And in this final period a focus on [Baby D] with Caroline Oakley doing feedings and cares and fully occupied with her, we say, up to what must have been the point of collapse and calling for Ms Letby to help.
So again, again, what is meant to have happened? I'm not asking that as general suggestions, I'm not inviting theories, we've had a lot of those, we've had too many of those. I'm asking that to make the point. Nothing. Nothing that's identified. You're told you can be sure, you have to be sure. Of what?
There's such a blunt point to be made in this case and it seems so insensitive, but it's a point I have to make because actually, blunt or not, it's important and it really stands out in [Baby D]'s case. It's this, and it may have struck you already: we're looking at intention to kill. Right? Let's come back to this, as I said I would where we could as we go through. Intention to kill from somebody who, the prosecution allege, plainly knows what they're doing. Because by this point it's already happened. With air embolus we're told. If that's right, it's not -- this is what I mean about being blunt, but I'll be blunt -- it's not going to take three goes, is it? It's not going to take three goes. Just think about that, it will be one shot, sudden, rapid and fatal. Unless we're going to just modify the theory to support the allegation. And there's no basis to do that.
[Baby D] was an unwell baby, there were obvious failings in her care, to her mother and to her. She was born with pneumonia and she died with pneumonia and to suggest that means she did not die of pneumonia is utterly unrealistic with a baby that, from birth to the point she died, was unwell. That's why she was here, that's why she couldn't breathe properly unaided for most of the time, that's why she needed breathing support. There were people there throughout. There is no evidence of Ms Letby doing anything remotely linked to harming her. And we say she cannot have done so in a situation and with the circumstances that we are dealing with. And she wouldn't have done so and she didn't do so. And you are being asked, ladies and gentlemen, to convict her, to be sure, on the basis of a theory that has, by this point of this trial, already been reframed and recast, however required, just to fit in with the evidence that we have. Inconsistent, no coherent principle, and not based on any thorough or proper research or experience. That's why I took the time this morning just to go back over the absence of that in this case.
My Lord, the next count to deal with is count 5. I wonder whether now is the time to take a break.
MR JUSTICE GOSS: Certainly. A ten-minute break, please.
(In the absence of the jury)
MR JUSTICE GOSS: Mr Johnson, I'm just wondering, could you tell me on what day it was of the trial that Dr Marnerides gave evidence about [Baby D]?
MR JOHNSON: The 29th and 30 March.
MR JUSTICE GOSS: Day 97? Thank you very much, Mr Maher. Day 97, thank you.
(3.08 pm)
(A short break)
(3.18 pm)
(In the presence of the jury)
MR MYERS: Count 5, ladies and gentlemen, [Baby E]. [Baby E] was born on 29 July 2015 at 17.53, so 7 minutes to 6 in the afternoon. He was 29 weeks and 5 days' gestation, the first of the two twins, [Baby F] was his brother, and he was 1.327 kilograms in weight.
On 3 August 2015, during the shift going from that evening into the night, he bled at various points. At 23.40, there was a desaturation and bleeding continued, and with a further collapse round about 00.30 or thereabouts, and he died in the early hours of the following morning, 01.40.
Dewi Evans, Dr Evans, says that death is due to air embolus and trauma causing haemorrhage, and Dr Bohin says death is due to air embolus and, I put question mark trauma, she wasn't so clear about that. But it was there.
A lot of emotional pressure for everybody with all of these counts on this indictment and no less with this one. Enormous pressure. A traumatic event. Terrible for [Parents of Babies E&F]. You will feel for them very strongly. Remember what I said at the beginning about how natural it is to feel like that and how could we do anything other than feel like that with them and for them?
You know that makes it very important to look at the evidence as objectively as you can because, as a starting point, the way anyone feels in terms of emotional reaction does not make anybody guilty of anything. And we will look closely at what [Mother of Babies E&F] said and we will deal with that respectfully and sensitively, as sensitively as we can.
There are particular issues to consider in [Baby E]'s case. I'm going to look at it with this structure in mind, although there may be some deviations along the way. First of all, whether [Baby E] received the care he required as his condition deteriorated late that night and into the early hours of the morning. Straight question: did he get the care he needed? Whatever was going on -- remember what we say about blame in this case and which direction it's going in and the reticence in some quarters to accept it? So, did [Baby E] get the care he required?
Secondly, we'll look at whether the evidence shows Lucy Letby attacking [Baby E] around 21.00, which is the starting point presented to us by the prosecution. Attacking him.
Third, we'll look at whether [Baby E]'s condition is as described by [Mother of Babies E&F] to the police at around about 21.00.
Fourth, we'll look to see whether the theory, the allegation, that [Baby E] died because of an air embolus is supported by the evidence because crucially that's the prosecution case.
And then also we'll look to see what evidence there is of an attack causing trauma upon which you can be sure as opposed to a bleed that developed in some other way. We don't have to say how the bleed happened. I don't say that to be belligerent or difficult, it's the law -- quite rightly, if I may respectfully observe -- that we don't have to, we may not be able to. What has to happen is the prosecution make you sure of harm and they propose two mechanisms, so you need to look at the evidence of that and you, ladies and gentlemen, will keep in mind throughout, of course, that there was no post-mortem in this case of all cases, a case where the issues so badly require that for resolution given what's said. There was no post-mortem.
And we repeat what we say and said yesterday: there is one person who carries the disadvantage that goes with that and she's sitting in the dock. We say that that absence has left the way open for the prosecution and their experts to make all sorts of suggestions.
So first question: did [Baby E] receive the care he needed? We say no, he didn't. Actually, he didn't. I'm talking about the bleeds in particular. The failure to react to the bleeds, the failure by Dr Harkness and [Dr C], the consultant, is obvious we say. The GI bleed, the gastrointestinal bleed had either been identified or strongly suspected by David Harkness at about 20 to 10 on 3 August. It had been. Can we put up tile 128, please, Mr Murphy, from the [Baby E] sequence.
Here we are. This is the first note and you'll remember we went over with Dr Harkness when he would have attended on the unit, and I will come back to this, but it's probably about 9.30 he could have been there to have done all this and then made this note. But anyway:
"Asked to see patient re gastric bleed."
So he goes through all of this, he does the examination, no wounds to the throat. You remember that was something that was floated, one of the many theories in this case. No evidence of that. Can we go over the page, please, just to see his conclusions? And we can see there:
"Suspected GI bleed [query] cause."
Which is consistent with what he saw. He prescribed ranitidine, which is something prescribed to reduce acidity, to assist with a situation like this. That's why he prescribed it at this time.
We say that in fact, from this point, given the bleeding which had commenced, it was obvious that a transfusion would be required, and certainly by the time we get to 23.00, if we scroll down a little bit further, we can see there, 23.00:
"Further gastrointestinal blood loss."
Nothing about "from the throat", by the way, nothing at all from the clinician, a suggestion thrown out there by the prosecution, put into that pattern. It's not:
"Further GI blood loss. 13ml bloodstained fluid from NGT."
Right? Even here, no action, no action for a transfusion. It says, "For elective intubation with drugs", but that didn't happen for some time. That was delayed for another 45 minutes. We say Dr Harkness did not act as he should and, if he wasn't out of his depth, then what did he think he was doing? He knew he was dealing with a gastrointestinal bleed, or a suspected one, that's what the notes say, that's why he prescribed ranitidine. A straightforward medical fact, again something Dr Bohin stubbornly refused to acknowledge in her evidence, we say, that this is a bleed that is causing a serious deterioration and we went on to say that is the cause of death. She would not have that.
It was at least 45 minutes to intubation. Dr Harkness told you that it took time to get the drugs ready. It took time to get to the truth on that didn't it because in fact we discovered, eventually, intubation drugs are kept on the unit ready to go. He said it took time to get the drugs ready to excuse the delay in intubation. Shelley Tomlins said they have them ready to go and when we came to Yvonne Griffiths, who showed us the fridge and items in the fridge, she pointed out where ready to go intubation drugs are kept up on the top shelf of that fridge. They're ready to go. He's not right, unless you just want to let that one go, ladies and gentlemen, that's a matter for you.
Substantial and ongoing blood loss. No transfusion. No note preparing transfusion up to this, no cross-matching, the things which you'd expect to happen as preliminaries to prepare for a transfusion. And [Dr C] didn't get to the neonatal unit for about 1.5 hours after she was first told about the bleed. She got there at about 12.25 or thereabouts.
Now, when I cross-examined her on 16 November, to her credit, we say, it's a matter for you, she agreed this was a serious situation by 10 pm and a very serious situation by 11 pm that was now a medical emergency. She agreed.
She should have been there before she actually arrived at 00.25 and she agreed that, she agreed she should have got there sooner and she wished she had. That's what she said, "I wish I had". The only, certainly senior, doctor to accept responsibility in that way for anything in this case. Of course if there's nothing to accept responsibility for, why should any of the others, but we say there is plenty, unfortunately. The reason she should have got there sooner, ladies and gentlemen, is of course she was overall responsible for what was happening with [Baby E]. We say, it's not accepted, it's a matter for you, but this is obviously sub-optimal care. You have the evidence. You don't get admissions the full way from doctors in this case on that issue, we say you're not going to get it, and you'll keep in mind what Dr Evans said about the reluctance of doctors to admit the mistakes they make. This isn't a criticism of all doctors, but we say it does apply here, the situation in general.
Keep in mind, ladies and gentlemen, [Baby E] and [Baby F] were at a high risk of problems. That's the overall nature of the evidence, including the opinion of Dewi Evans.
Belinda Simcock or Williams or Wilkinson -- Williams, sorry -- a nurse for over 20 years, her view is a baby like [Baby E] carried a significant risk of mortality, sadly. Because they were premature with twin-to-twin transfusion syndrome and reverse end-diastolic flow, they shouldn't really have been at the Countess of Chester but they were there because they had run out of cot space at Liverpool Women's Hospital. Well, the different levels of unit exist for a reason, don't they? We say [Baby E] shouldn't have been here. It may not be anyone's fault that he was there, but it's illustrative, we say, of the difference in the levels of care that exist for a reason.
And when things went wrong with [Baby E], as they did, the medical staff at the Countess of Chester, it seems for the whole of the paediatric unit, A&E and the neonatal unit, consisted of Chris Wood, who was a GP doing a four-month paediatric placement as a relatively junior doctor, David Harkness, the registrar, and [Dr C], who was in hospital accommodation but didn't come to the scene until after [Baby E]'s collapse at 23.30 -- 23.40 sorry.
We say it's not extraordinary he became unwell: his blood sugar struggled. It raced to a high level throughout, despite attempts, we say, by some witnesses to play that down, but we went through this, you may recall. With [Nurse B] I went through showing how the insulin had been given to him, the insulin in the case of [Baby E]. He was on and off insulin throughout the four-day period in the neonatal unit, maybe because his body wasn't producing enough or maybe because he was under stress because of another underlying problem. [Nurse B] volunteered stress as a cause of high insulin before I asked her a question about it. By stress we mean physical which can lead to things like acid production. You don't have to just take that from me, I am not asking that you would, [Dr C] accepted that this could be a cause of high blood glucose and that stress can raise acid levels and high acid levels can cause ulceration and bleeding. So if you're looking for an explanation for a bleed that does not involve Ms Letby, we say you have it there.
Plainly, Dr Harkness considered this may be due to acid, or could be, as per his notes and the prescription for ranitidine. But of course a shield wall of denial goes up when the defence join the dots and actually make the suggestion that that could be consistent with this gastric bleed or some other unidentified cause but not Ms Letby and that the failure to act swiftly and appropriately was a mistake.
We do -- you may, you may struggle to understand how Dr Bohin could not concede that at the very least bleeding was a cause of death. She wouldn't. We say that is a good example of her stubborn refusal to accept what must be a reasonable possibility. There was profuse bleeding on top of 25% blood loss. It's distressing talking about this, I know that. We have to when we're considering an expert who won't accept that blood loss, bleeding, was a cause of death.
We say the evidence is clear and that tragically [Baby E] did bleed to death when he was not in the right place, where the doctors failed to react appropriately and in time and, most unhappily and surprisingly, delayed a blood transfusion for which we never really got a good reason. But everybody here could see that this required a blood transfusion. I don't know, you may be doctors and nurses, for all I know, I don't know. But even if you're not, it speaks for itself.
Of course this is one of those cases where having dealt with this as he did, or rather as he didn't, David Harkness has gone on to provide the prosecution with descriptions of discolouration to the police and to you that in themselves are different, different from what he said in evidence, from what he said to the police, and both of which do not reflect what he put in the notes at the time. Familiar territory.
The second point I said we'd look at, ladies and gentlemen, whether the evidence shows Lucy Letby attacking [Baby E] around 21.00. Let's start with this first attacking him. In opening on 11 October last year the prosecution said this before you had heard the evidence:
"[Mother of Babies E&F] interrupted Lucy Letby who was attacking [Baby E]."
That sounds pretty definite, doesn't it? What did you think that consisted of? Well, wherever we get to with the evidence and with [Mother of Babies E&F]'s evidence, that isn't the description she gives and that isn't the evidence. The evidence does not show Ms Letby attacking [Baby E], however many times that is said, we say doubtless for the effect it has upon you and whoever is listening, it doesn't do that. It's a highly charged description, highly emotive, and has been pushed from the start.
[Mother of Babies E&F] in her evidence said Lucy Letby wasn't even beside him, she was working at a workstation and [Mother of Babies E&F] just walked in. Her evidence was she walked into the nursery, which would be unexpected, whatever the milk times are, generally unexpected and indeed anybody can walk into that nursery, "Busy as a bus station", Belinda Williamson said, a prosecution witness, unchallenged on that.
And when [Mother of Babies E&F] gave evidence on 14 November, she said she was busy doing something but she wasn't near [Baby E]; page 19. So yet again, someone appearing unexpectedly to find Lucy Letby not causing harm. That is the evidence. So that is where we get to on Lucy Letby attacking or an attack ongoing, being interrupted, [Mother of Babies E&F] interrupting Ms Letby who was attacking [Baby E]. The evidence is she was busy doing something but she wasn't near [Baby E].
Next point, the condition that [Baby E] was in when [Mother of Babies E&F] came downstairs and as described to the police later. You'll look closely at what [Mother of Babies E&F] said, ladies and gentlemen, and we'll be careful with the way we deal with this and sympathetic. Okay? It doesn't mean disregarding any shortcomings in the account when look [sic] at carefully.
The prosecution, we say, have done their best to turn this part of the case on this part of the count into what they have called a binary choice -- you heard them use that expression last week -- meaning either Lucy Letby is lying or [Mother of Babies E&F] is lying.
We say they haven't done that by accident. That is done deliberately. Who's the liar? It is done deliberately to put the defence, and to put you, in a difficult position because no one is going to want to say that [Mother of Babies E&F] is lying and no one is saying that she is lying. So can we get that clear straightaway? That's language used by the prosecution to characterise this situation when they say this is a binary choice.
The question is: what degree of accuracy can we place on everything that is said? And I don't say that in some mealy-mouthed fashion because we need to look at this and see whether or not the way it was described, as [Mother of Babies E&F] told the police, as she discussed it as she's given evidence to you, fits with everything we know at the time because you have to assess this. That's different from a question of lying, so perhaps can we take the heat out of that by saying this is a question of accuracy and reliability.
What do we go with? Well, on 14 November [Mother of Babies E&F] began on this part of her evidence saying that:
"I could hear my son crying. It was like nothing I'd heard before. I walked over to the incubator to see he had blood coming out of his mouth and I panicked. I was panicking because I felt like there was something wrong."
Well, she dealt with where Ms Letby was and whatever is happening here, we say at this point there is no basis for linking whatever is happening here to the bleed and death later because David Harkness saw [Baby E] directly after this and found him to be fine and settled. No suggestion by him or anyone at that point of blood or crying horrendously.
Now, as to the accuracy of the account, screaming. All right? Screaming. Horrendous is the way [Mother of Babies E&F] described this. And we say however that is, however that recollection works, it cannot have been like that. It cannot have been for this reason. There weren't just two people in that neonatal unit and a baby. All right? It's not [Mother of Babies E&F] and Ms Letby and corridors of empty space and [Baby E]. It's full of people, actually, and people coming and going. We have to keep coming back to the fact this is happening in the real world on a relatively busy unit, whatever time of day and night -- and this isn't, if it makes any difference, right in the middle of the night, it's a fairly busy time, you may think, round about 9 o'clock, if that's the time we're talking about. You will remember the evidence of Belinda Williamson which I took you to earlier.
That piece of evidence is important and the descriptions of other nurses as to of how busy nursery 1 was. They are important generally in this case and of course important in the case of [Baby E] because it makes it less likely that someone has the risk or the opportunity to harm, as it's alleged [Baby E] was harmed, if they can be caught in the act like that. And it's also important when a witness describes, as [Mother of Babies E&F] does, hearing something she says she heard and screaming like she says it was. It's a straightforward point.
How on earth is that not going to raise the concerns of other people who will say, "Yeah, I heard the most horrendous screaming, I went along, it's the night that [Baby E] was bleeding," and so on? We hear things of other nurses who are aware of what happens in other counts. It is striking. There is nobody else describing what [Mother of Babies E&F] describes in terms of screaming at that point and we say it is unrealistic, in terms of accuracy, what happened, that it can have been in the way that she is describing it, whether [Baby E] was upset or not -- he may have been, but screaming horrendously like that is not anything that anybody else suggests took place and it's difficult to see how that could have gone unremarked in this case.
But it's not just with the screaming, let's look at the bleed. We know there are issues with the timing and there are matters to look at with that and the question of bile, the bile-stained aspirate, what was there at 9 o'clock, what was there later. We recognise those points.
But as to the nature of the bleeding, [Mother of Babies E&F] began this part of evidence by saying that:
"[Baby E] had blood coming out of his mouth."
That's how it began. In fact it became apparent on further questioning that it isn't blood coming out of his mouth. We had this:
"Question: Did the blood go anywhere else apart from on his chin?
"Answer: It was on his -- a little bit.
"Question: A little bit on the lip?
"Answer: And underneath.
"Question: Just so we can be quite clear, you're not describing something where there is blood coming out and it's going on his clothes or over the bedding or anything like that?
"Answer: No.
"Question: It's that you could see certainly what looked like blood, you'd say it was blood, but you could see it round about his chin, in that area like we saw on the picture?"
And you've seen that picture and [Mother of Babies E&F] said yes.
Pausing there, the description "he had blood coming out of his mouth" is graphic and in fact on further questioning that isn't what was going on in the sense of blood just coming out of his mouth or coming over the place.
And [Mother of Babies E&F] agreed, 14 November, page 40, lines 1 to 2:
"It was not completely fresh."
That what's she agreed. So, we observe, not something that necessarily goes to an ongoing bleed or something that's linked to 1.5 hours later. So what was it? What was it?
We've seen described this smudged patch around the face there, around the lips. In her statement to the police she had said it wasn't thick blood. And reading from the statement and putting this to [Mother of Babies E&F], I asked her:
"It wasn't around his bottom chin..."
I read from the statement:
"Question: It wasn't around his bottom chin and the bottom lip?
"Answer: It wasn't thick. It's difficult to explain what it was. It's like a dribble pattern on his skin. It wasn't completely fresh.
"Question: Is that what you described, what you saw?
"Answer: [And she nodded and said] Yes, a dribble pattern, not completely fresh."
However we approach this, and we approach it sensitively and respectfully, that's different, isn't it, from the initial description:
"Screaming horrendously and blood coming out of his mouth"?
It is different, it's not the same and it certainly doesn't create the -- doesn't sit with the same impression.
I suggested, "Could it be aspirate?" She disagreed. But nowhere, and this is the importance now of beginning to pull things together and taking a broader view, nowhere is there any other evidence -- in particular, nowhere from any nurse or doctor at the time is there any suggestion that round or about 21.00 [Baby E] was screaming in a way described or bleeding in the way [Mother of Babies E&F] described at the start of her evidence. There isn't.
If we go to the neonatal review please at page 2, line 33. I'll check I'm in the right place here.
This is the neonatal review. Can we go in fact to page 3, line 35? We might need to go back, Mr Murphy, I just want to check something. Yes, that's right.
The page we've just seen -- put that back. I apologise for jumping around, ladies and gentlemen, I wanted to make sure I was in the right place, I am.
Page 2, line 33. You may already see where I'm going with this from the timings and who's doing what. Just go back a page, Mr Murphy. Thank you.
21.00 in fact. We've got Lucy Letby and Caroline Oakley involved or, first of all, Ms Letby at 21.00 dealing with [Baby F] and also, look at that, Caroline Oakley, 21.13, involved in a prescription for [Baby F], who we know is in the proximity of [Baby E]. This is contemporaneous or closely contemporaneous with what [Mother of Babies E&F] is describing.
If we go now over the page, please. Still there, 21.13, okay? Lucy Letby and Caroline Oakley observations on [Baby E] at 21.15.
This is just an example -- thank you, Mr Murphy -- but that's another nurse involved in the care in and around that nursery at a time that [Mother of Babies E&F] is describing screaming horrendously and blood. That's why I'm saying this isn't about lying or a binary choice, and it's open to you, and you, no one else, you to draw your fair conclusions from this. But the graphic description we have, we suggest, does not fit well with other people being about the place and being involved with these babies at that time who see nothing that coincides with this.
We can move from that and we're going to move next to what happened when -- the point of [Mother of Babies E&F] leaving, a conscientious mother and anxious. And she says: well, I left because somebody in a medical position said to go. She left, didn't raise anything with anyone else on the unit, and if she had been told a doctor was coming, why not wait for that? There is an issue here, isn't there, about whether a doctor was there or not. There is an issue. David Harkness agrees that the timings and the making of his note at 22.10 means that he must have been on the unit from about 21.30 at the latest; he said that on 17 November. And when he got there he saw a dirty aspirate which may have contained flecks of blood and bile.
And he -- his evidence, and he was asked about this in cross-examination, was he couldn't remember whether he saw [Mother of Babies E&F] around that time or not. He did see her but he cannot recall the precise time. That is his message -- sorry, that is his evidence.
And without door swipe data it's difficult to be sure exactly where he was at what time. That is door swipe data that coincides precisely with the point we're looking at.
The description that [Mother of Babies E&F] gives, this is something you'll have to weigh up, with what you would expect then to follow if she saw that. Would she just go? She said she did. You may accept that she did. Would she raise anything with another member of staff? You might think she would do that but nothing happens. She left.
And when [Father of Babies E&F] gave evidence he said that his wife had told him, and this is the way he put it:
"They told me to leave."
They told me to leave. They told me to leave. Is that just something he said because someone giving evidence may just pick that expression and not mean it or does that reflect what he was told? We say that is capable of fitting with others being present. And it doesn't fit, if there's a they, with what [Mother of Babies E&F] said.
The prosecution point to and [Mother of Babies E&F] points to and [Father of Babies E&F] points to a phone call at 21.11 for 4 minutes and 25 seconds, and we don't doubt that [Mother of Babies E&F] is anxious and worried. We don't challenge that, that she rang her husband. They say they both talked about bleeding in that phone call.
We raise the possibility of whether details have been transferred from one call to another, that bleeding had happened later and maybe that's been translated to this phone call and that is rejected by [Mother of Babies E&F] or her husband. So that's where we get to with that.
The later phone call is ascribed to a phone call involving a midwife, someone else, when news came through to [Mother of Babies E&F] later on. That phone call was for 14 minutes and 30 seconds of, we're told, someone calling [Father of Babies E&F].
Well, it would be helpful, wouldn't it, it would be helpful with this difficult area of evidence if there were some way of having an independent guide to what had happened, what condition [Baby E] was in and how [Mother of Babies E&F] was, over and above the fact we have no other witness on the unit describing what [Mother of Babies E&F] said? I've identified that.
It seems the first person -- a person, if not the first person -- that [Mother of Babies E&F] spoke to after being downstairs was the midwife, Susan Brooks. I don't expect her evidence to leap out right now, but it's agreed evidence. Her statement was read to you on 15 November. It made reference to a note she made. I'm going to put that note up, but keep in mind all you know about [Mother of Babies E&F], your assessment of her, what it is she said she saw, what you might expect her to say or how she would express herself if things were as bad as they were described to you.
I'm going to ask if we could put up page 33405, thank you. The top part:
"Care since 20.00 hours."
This is from Susan Brooks:
"[Mother of Babies E&F] was postnatally well. I had given her some medication and she asked me to let her know if there was any contact overnight from the neonatal unit as one of the twins had deteriorated slightly at that time."
Okay? And we say, come on, that's not consistent with the gravity of what has been described in evidence. This is from the time and we know what it is because it's there.
It's a matter for you, ladies and gentlemen. If the situation was as it was certainly initially described in evidence to you, seriously, would it be down there if [Mother of Babies E&F] had said he had deteriorated slightly? Okay? We say that is inconsistent with later descriptions.
You have to weigh this all up. This is pre-eminently for you. But it is the best independent guide. It may be the only independent guide you're going to get and you'll have to decide what weight you give to it, but please don't ignore this, together with the fact that nobody else on that unit is talking about screaming or being horrific or blood flowing or anything like that. We've even got another nurse pretty much around that time in that nursery, no blood, nothing coming from [Baby E]'s mouth, all that stuff about bleeding from the throat. No, that's never seen. And in the note near the time, we have "deteriorated slightly". That is evidence and that's agreed evidence that was read to you. And you have heard about agreed evidence from the prosecution and it's no different when it applies to the defence.
We can take that down, please, Mr Murphy.
I want to look at the prosecution and their experts and the question of air embolus next. Dewi Evans, air embolus and injury inflicted with an item from the unit, and Dr Bohin, air embolus.
So is the suggestion or the theory that [Baby E] died because of air embolus supported by the evidence? That is the prosecution case. So let's see if that applies. Dr Evans and Dr Bohin point principally to the account of discolouration given by David Harkness, and that's what this allegation in this case, the allegation of air embolus, is based upon principally when we come down to it. So where do we get to with David Harkness and discolouration?
His clinical notes, we can perhaps put them up for this time at tile 204, please, Mr Murphy. Thank you. This is made at 01.45:
"Sudden deterioration at 23.40."
We have:
"Poor perfusion, colour change on abdomen, purple discoloured patches. Intubated as an emergency at 23.45."
In fact, matters proceeded from there. That's the description there.
Dewi Evans accepted, on the basis of the description in the notes alone, he wouldn't suggest an air embolus. And certainly Dr Bohin accepted poor perfusion is consistent with hypoxia, which is consistent with blood loss.
Dewi Evans, as it happens, in the first of the two reports he wrote, didn't suggest air embolus because at this point this is not evidence of air embolus, we say.
However, there are two further sets of descriptions from Dr Harkness. There's a description he gave in evidence to you, 7 years after the event, that is significantly different from his clinical notes and far more lurid, and a description to the police in his interview and the statement he made 3 years after the event, which is also different from his evidence and these clinical notes.
In his evidence, in particular, he talked about, on 17 November:
"... strange patches in one area and then another, different sizes, changing where they were."
Okay? Don't forget this comes after what he says he had seen in the cases of [Baby A] and [Baby B], although, as it happens, he made no note of. So if we've got patches appearing or disappearing in some way or mobile, and we all know the significance of that now by the time David Harkness came to give evidence to you, and we say made his statement to the police, everybody's got the significance who's been talking on that unit of mobile patches. But we don't have anything mobile here, do we? Not on the document that counts, not on the notes. That is very surprising, we say, particularly if he was alert to this because of what he says he saw with [Baby A] and [Baby B].
And in his statement to the police in 2018, which I'd read to him, it included descriptive features like "a strange discolouration over his body" and reference to a rash that "appeared on his chest and then a path (sic) somewhere else". So we've got strange discolouration over the body, a reference to a rash that appeared on his chest and then maybe a path -- or appear maybe -- appear somewhere else. And in evidence, strange patches in one area, then another, different sizes changing where they were.
But the crucial difference, and one that won't be lost on you, is the question of mobility. That is what comes out of the Lee and Tanswell article, that isn't what's in this note, but that's what appears. Very mobile evidence, that, isn't it? That's what appears in the statement to the police and in his evidence to you.
David Harkness reached for the formula, "It's like the rash on [Baby A]". Well, you know what he said about that in his notes and what he said about that in his statement to the coroner, which was nothing -- did I mention [Baby B]? It's [Baby A] that I refer to, that's my mistake.
Then we come to the actual -- and that's the key evidence, by the way, the key evidence relied upon for air embolus in this case. That is it: the mobile colours, mobile in a way that wasn't described in the note at the time and a note that even Dr Evans said he wouldn't have based air embolus upon that.
So we take it he bases it upon the changed account that came later. We can take that down, Mr Murphy, thank you.
We come to the actual collapse and death. We have a description at 00.36. As David Harkness and [Dr C] stood at the end of the incubator, [Baby E], according to David Harkness, collapsed in front of them:
"In front of our faces as we stood there".
This part of the incident doesn't involve any discolouration at all, as it happens. No evidence of anybody interfering with [Baby E], and we have Dr Harkness, [Dr C], Chris Wood, Belinda Simcock and Ms Letby all present. But where has the attack happened in those circumstances and with [Baby E] collapsing "in front of our faces as we stood there" by David Harkness' account? Where has it happened?
What does happen when they start CPR is [Baby E] bleeds -- and I'm not going to go through that awful detail out of respect to everybody because we've been there, we understand it, it's awful. We say that none of that fits with the collapse triggered by an air embolus; it does fit with heavy bleeding. The only person then who disputes that, that heavy bleeding is linked to death, seems to be -- is Dr Bohin.
Well, what of trauma then? As opposed to a bleed that developed some other way, what of trauma? Because in the absence of air embolus, or maybe in tandem with it, Dewi Evans turns to an attack with an implement. For two of his reports Dr Evans said [Baby E]'s sudden demise was the result of an acute GI haemorrhage:
"I am at a loss to explain the cause of the haemorrhage. This isn't typical of NEC. In the absence of a post-mortem, it's not possible to say whether [Baby E] sustained trauma to the upper GI system."
That's right, ladies and gentlemen, and we say that's where this should end. Then, in the third report, Dr Evans suggested an injury caused by thrusting in an NGT. You'll remember this. An NGT is a very narrow flexible tube. An NGT would never be capable of doing what Dewi Evans alleged and, in fact, he withdrew that suggestion in his report made a few weeks before this trial began in September 2022.
So we've gone from him saying [Baby E]'s demise was the result of an acute GI haemorrhage, "I'm at a loss to explain the cause" in reports 1 and 2. In report 3 that changes to an injury caused by thrusting an NGT. That is dispensed with. We say you can see him involved in conjuring theories to support the allegation rather than reflect the facts. But having rejected the NGT theory, he didn't stop there. You may recall he arranged for the police to bring him an introducer, like he doesn't know what one is, but he arranged for them to bring him an introducer.
Having set that up, we got served with the following part of a report or a statement only weeks before the trial and it said this:
"I have not seen any statement noting the presence of an introducer. Therefore my opinion regarding a potential cause of his trauma must remain speculative. I believe that it is reasonable to contemplate the possibility if a member of staff recalls that a redundant introducer was present around the time of [Baby E]'s haemorrhage, I believe it is an option that is worth exploring."
"I believe it's an option worth exploring." An option worth exploring? When we accuse him or other witnesses, prosecution witnesses, of seeking to work up an explanation, work up an explanation to meet the allegation, "I think an option worth exploring" comes close to that, we say, ladies and gentlemen.
The whole point is we are not to speculate, we are directed not to speculate, and how we're meant to be approaching this on "let's look at an option worth exploring", goodness knows. Are the police meant to go out and look for a witness to volunteer that? And nobody did, of course. But it gives away what's going on when Dewi Evans, in particular, where this is concerned, presents himself or is presented as any kind of independent or objective expert, and we say we can see there he's taking up a role of investigator, creator of theories, and coming up with speculative ways of hunting for evidence in search of a conviction.
There were obvious failings in care in the case of [Baby E], ladies and gentlemen, in reacting to a clear medical emergency. And we say, as a result of that, [Baby E]'s bleed ran out of control and he died. The evidence of air embolus is fanciful and is based upon Dr Harkness' shifting descriptions and no amount of shifting was described in the notes at the time, though he described a rash that was appearing or in some way moving later. And that is that.
There is no post-mortem and there is no examination identifying a wound to the mouth or throat, and Lucy Letby's getting the blame, despite having seemed to have done nothing close to an attack at any point, and we say no realistic opportunity for an alleged air embolus to have been delivered at the end. There just isn't enough and it's wrong to proceed on the basis there is if there isn't.
Tomorrow, ladies and gentlemen, I'll turn to the case of [Baby F] and then some of those issues relating to [Babies E&F] and documents that arise in their case. We've heard the question of the card that was sent. In fact, I want to go back and revisit an entry in the diary to look at, but I'll deal with that more generally when we deal with [Baby F] and look at the case at the conclusion then tomorrow.
My Lord, that's as far as I go this afternoon.
MR JUSTICE GOSS: Thank you very much.
Thank you, members of the jury. 10.30 tomorrow, please. Remember your responsibilities.
(In the absence of the jury)
MR JUSTICE GOSS: You won't have had time, I know, Mr Myers, because you've been otherwise engaged, just to check the evidence in relation to that matter that arose this morning. Can that be done overnight?
MR MYERS: Oh yes.
MR JUSTICE GOSS: The other thing is this, just so you know, I asked, and I was helped by Mr Maher, about what the evidence of Dr Marnerides was in relation to the abnormality to which you referred in agreed fact 21. I've got the evidence-in-chief but I haven't managed to look at the cross-examination yet.
MR MYERS: Very well.
MR JOHNSON: I've got it. I can put it in writing and circulate it.
MR JUSTICE GOSS: I've got the evidence-in-chief. Basically, he said it wasn't an abnormal finding. He said it's perfectly normal.
MR MYERS: Yes, he did.
MR JUSTICE GOSS: But you made the point to the jury that it wasn't normal, there was an abnormality here.
MR MYERS: Yes, I did, my Lord, and the point made comes from the agreed fact and it's very clear in the way that I put this. If we look at what Dr Kokai says, he says:
"The stomach or loops of bowel and mesentery show normal rotation pattern apart from the descending colon."
In other words that is not normal. That's why he says "apart from".
MR JUSTICE GOSS: Yes. I suggest you look at what Dr Marnerides actually said in his evidence and when he also went on to explain that even if there was any abnormality there -- and he doesn't put it in these terms -- the only thing you could have then would be a volvulus and there was no volvulus and there was nothing on post-mortem examination that revealed any abnormality.
MR JOHNSON: And there's meconium in the colon, which is critical.
MR JUSTICE GOSS: Yes, exactly, so I think that will need to be revisited as well. If not by you, it'll be revisited by me.
MR MYERS: Yes, well, I can look at that, my Lord, I'd be grateful for the opportunity to do so. In fact, the other matter -- we are looking at that. There were two matters raised with regard to that. We believe the first one does not relate to gas in the heart, but I'll check that. Maybe the second one does, but the first one -- and we can't identify that but we'll continue just to check.
MR JUSTICE GOSS: I'll leave that with you, I'm not rushing you. It's only before we get to Friday afternoon that I want this sorting out.
MR MYERS: It has to be accurate, my Lord.
MR JUSTICE GOSS: Yes, exactly.
MR MYERS: I've certainly approached this in a particular way, but I'll go back and look at the evidence and make sure it's in line with that.
MR JUSTICE GOSS: Thank you very much. All right. Does someone want to go down?
MR MYERS: Yes, there will be a visit, my Lord, please.
MR JUSTICE GOSS: A visit, please.
(4.10 pm)
(The court adjourned until 10.30 am on Wednesday, 28 June 2023)
Wednesday, 28 June 2023 (10.30 am)
(In the presence of the jury)
Closing speech by MR MYERS (continued)
MR MYERS: Ladies and gentlemen, we're going to move to the count of [Baby F], count 6. Before we look at [Baby F]'s case in particular, can I just say a little by way of introduction about the insulin counts in general because we have those on count 6 with [Baby F] and count 15 with [Baby L].
The prosecution have referred, more than once, to concessions from Ms Letby that she accepts the insulin analysis. As a starting point on her behalf, we do not accept that those concessions, so far as they can apply, and I'll come to that, establish that she has committed any offence. And we say that to do that, to establish the commission of an offence, where these counts are concerned, keeping in mind his Lordship's directions on the law, you must be satisfied so you are sure that the sampling and testing has been done properly and accurately, that goes without saying, and you must be satisfied so you are sure that Ms Letby deliberately introduced insulin with an intention to kill.
We know that the analysis has been explained. We know that. And you may well accept it. It is obvious that we can raise little by way of challenge to it and we accept that. But where somebody disputes guilt as firmly as Ms Letby does, we do, we say, at least need to check that the evidence stacks up. In that regard it is insufficient simply to rely upon concessions obtained from Ms Letby in the course of cross-examination to whether things are accurate when she can't possibly know herself that they are. She's just working with the same evidence as anybody else in terms of analysis.
We know that evidence at face value establishes how the testing was done and the results obtained and therefore what we do, and all we can do there, is to ask you to look closely at that evidence and satisfy yourselves that it is safe to rely upon, not by speculation but by logic and any inferences that follow from it. You're entitled to do that.
Can I make this clear: it is not agreed evidence. However much anybody would like it to be, it isn't. You've seen witnesses come and be cross-examined on these issues and that is why.
The defendant, Ms Letby, cannot test the samples because they were disposed of a long time ago. That can't be helped. That's how they were dealt with as part of the sampling and testing process. We cannot check that and therefore we are looking in the evidence at the way the sampling and the testing was done.
You will have seen, ladies and gentlemen, that the evidence has demonstrated in both counts, as it happens, that there have been bag changes when Ms Letby wasn't present, and the changing of lines and giving sets at the very least in the case of [Baby F], and with, it seems, insulin continuing throughout.
We say that is something that Ms Letby cannot be held responsible for realistically and we'll look at that and I'll explain why we say that. We say the fact is, on the evidence, that whatever has happened, there is no basis for saying this can only be her, though we do not and cannot identify an alternative in the event, as the prosecution put it, of a targeted attack. That's an expression they have used.
You will keep in mind as we go through these counts that she is seen to do nothing that possibly links her to what is alleged. And you'll keep in mind the prosecution have made, in particular, the suggestion that she has been involved in adding insulin to bags when they are already hanging or as they are put up, but in particular, as it was put in the case of [Baby L], going back and spiking it maybe three times. You'll want to think about how realistic that is.
Then where we say that unrealistic explanation can't be preserved, the prosecution switch to the possibility, and this is especially in the case of [Baby L], of sticky insulin, and we'll look at that. But we say these are the most contrived and artificial explanations, designed to make up for the fact that whatever has happened, the evidence does not work out in the way the prosecution would like it to prove what they need to prove, and you will have to consider this.
In closing, the prosecution said -- this is from 19 June:
"I don't know, because I'm not a fortune teller, whether or not you will hear any submissions questioning the integrity of the process or the validity of the results, but if you do, a careful consideration of his Lordship's review of this chapter of the evidence, we suggest, will leave you well placed to assess the merits of any such submission."
We're not sure what was meant by that. The prosecution know very well, as do you, that the process is questioned. This hasn't been dealt with by agreed facts or agreed evidence and Ms Letby does not accept she has done anything wrong. So we ask you to look at all of the evidence on this issue, as you are entitled to and as we are entitled to ask you, and to reach your own conclusions so long as those conclusions are within the confines of the evidence and fair and reasonable conclusions to be drawn.
One matter, which we'll deal with, a striking matter, we say, is that neither [Baby F] nor [Baby L] come close to the serious problems that high doses of insulin like this are said to cause. Just think about that. I'll come back to it when we look at the evidence. But the expert evidence of Professor Hindmarsh was clear. And if insulin at high concentrations affects blood sugar and maintains it at low concentrations for a long period of time, that can be extremely damaging, if not lethal in the case of an adult, never mind a neonate.
In the case of [Baby F], there was a vomit at 1 o'clock in the morning on 5 August and there were raised respiratory and heart rate for some hours afterwards but, we say, nothing approaching what expert evidence has described with regard to high doses of insulin. And in the case of [Baby L], he only ever seemed to be in good health, save for the low blood sugar readings, which we say is extraordinary if he received such high doses of insulin but maintained such low blood sugar for such a period of time. We'll look at the evidence on that, as you'd expect, when we come to [Baby L].
All of that is before we come to what we say is an obvious question that arises with these counts, or obvious questions that arise, such as why only use insulin like this in these two cases if it is such a clever and undetectable method of causing harm? And if the intent is to kill, then why not do that if that is what has happened?
So there is a good deal to look at and consider, we say, ladies and gentlemen, and these counts don't use the -- and let's face it, this is the way they are being used -- short-cut to conviction that the prosecution are keen for you to do. We say the conclusions to be drawn from the evidence are not clear. The evidence does not have all the answers for what has happened and it cannot be used in that way, however much anybody is hungry for convictions in this case. The same rules apply, it's still necessary to look at it in the same way and ask the question: when faced with this evidence, are there explanations or are there possibilities that mean we can proceed on the basis of the presumption of innocence and apply that? Does that mean she is not guilty? Not to approach this as something which is simply set out to you with a presumption of guilt as if it can just be taken as a fixed fact that carries you straight to conviction, which is the way it has been presented.
There is a good deal to look at in these counts and we ask you to look at it, as we have throughout, with the presumption of innocence in mind and not the presumption of guilt.
So we start with [Baby F], ladies and gentlemen. [Baby F], you know, born on 29 June 2015 at 17.54, the second of the twins, 29 weeks and 5 days' gestation, 1.434 kilograms in weight.
From about 1.54 on 5 August 2015, he was recorded to have low blood glucose. That continued until 19.00 that day. An analysis of a sample taken at 17.56 that day returned insulin C-peptide readings of 4,657 picomoles per litre of insulin to 169 picomoles per litre of C-peptide, which you know from the expert evidence is a ratio which indicates, if accurate, that there has been the introduction exogenously of artificial insulin. You'll keep in mind those figures and just how high that is, 4,657 picomoles, four times higher, as it happens, than the dose that is said to be established in the case of [Baby L].
When we deal with this, ladies and gentlemen, however much I may refer to it or not, it may be helpful just to have open, to have at hand the Hindmarsh table, if you have it, which is behind divider 5 of jury bundle 1.
Unless necessary, it's not something I just propose to just go through, but because there's reference to events in this, you may want to have access to this and look at it as you listen to what we have to say about it.
It's important to keep in mind as we look at this -- you may have marked this on the table or not, you may want to, it's up to you, but to have a note of this somewhere -- the bag of prescription TPN that was hung by Ms Letby and [Nurse A], at what is said to be the start of this period, is hung at 00.25 on 5 August. We've seen that table, which is at tile 147. I don't ask to put it up now, we've seen it that many times. But 00.25 on 5 August is when a bag is hung of prescription TPN for [Baby F].
We also know, and it is helpful to have this in mind or recorded somewhere, that bag was changed to a TPN Maintenance bag, because the line had tissued, by Shelley Tomlins and [Nurse C] at 12 noon that same day. You see reference to that on that prescription for that, but those are the two key times.
Now, going through the material relating to this analysis, first of all, we cannot check the sample and we know why and that's just a fact, it's just the process. Unlike the case of [Baby L], we cannot and do not point to any issue with regard to the way the sample was taken. There is an issue in the case of [Baby L] and the prosecution have found it necessary to address you at length about that, seeking to persuade you the sample was taken at 12 noon and not 15.45. I'll come to that when we come to [Baby L]. But no issue arises like that in the case of [Baby F]. We accept that.
We recognise, being realistic, you are likely to decide you can take the analysis as accurate. I know that. But there are just two points we make as you do that or as you consider that.
First, the analysis which we have, which gives us that ratio, those figures, is based on a sample that was taken at 17.56 on 5 August. So this was after the bag change, the second bag that was placed on around 12 noon that day and therefore did not come from the bag hung by Ms Letby and [Nurse A] and relates to a sample taken at a time when she was not on duty.
So the sample relates -- the analysis relates to the second bag. Now, Professor Hindmarsh in dealing with this said that it is reasonable to assume the amount of insulin in the first bag was similar to that -- sorry, the amount of insulin in the second bag is similar to that in the first, given that the same amount of dextrose was being used to counteract it and the blood sugar level remained relatively constant throughout. In other words, if you look at that table the readings are all in the same sort of bracket, this is what he said, and it's the same type of dextrose being used to deal with it, therefore the conclusion to be drawn is the level of insulin must remain similar or the same throughout that period. That's what he said.
We say that must be very approximate, it must be. Professor Hindmarsh accepted that blood glucose -- and this was in examination on 25 November, he accepted that blood glucose cannot establish the amount of insulin or the insulin/C-peptide ratio. You can't look at blood glucose and work out how much insulin is there, otherwise there wouldn't be a need to do the testing, would there? And although he says that the blood glucose to dextrose relationship was steady across the two bags, you might note when we come to the case of [Baby L] that the type of readings there don't seem all that different from those in [Baby F]'s case. We can look when we get there. They don't seem all that different.
But we know those are with a much lower level of insulin, so we do question, as we're entitled to -- it's a trial, we're allowed to do this -- we question whether the level of insulin from the continuing bag can be said to be the same as it was beforehand. We question the basis for that. It seems incredibly approximate.
The second matter we identify, and question, is, we say, the effect upon [Baby F]. We don't disregard the fact that he was unwell, that he vomited, and the prosecution identify, as follows from what's been said about the question of half-life, that that comes some time about half an hour after that first bag is hung. It's at 1 o'clock on the 5th. That's right.
But we do observe this: it's significant, what happens and what doesn't happen when we come to consider what might be expected for the huge level of insulin disclosed by the analysis and, I suppose, the question of intent, although it's not accepted that Ms Letby has had anything to do with this.
When he gave evidence on 25 November, Professor Hindmarsh was asked to describe the dangers of very low blood sugar. He explained that the brain does store glucose as glycogen but this store will last only for 20 minutes and he said that when it is insulin that has produced very low blood glucose, this switches off the brain's ability to use other energy sources and therefore in that situation the brain is going to be susceptible to damage. Whether there is damage depends on the duration and depth of the hypoglycaemia.
This is evidence. However anyone reacts to this, this is evidence in the case and it's a matter for you, ladies and gentlemen, as you know.
He said that once we get down to 2.6 or 3, that's the blood glucose reading, there may be some cognitive interference in thinking, but going further down in terms of blood glucose there can be seizures, death of brain cells, coma and even death. This is his expert evidence. And we say it makes it surprising, we question, given that, that after 17 hours with [Baby F], we are told from the analysis of consistently high insulin and blood sugar readings as low as 0.8 and many below the 2.6 or 3 at which Professor Hindmarsh said we are entering territory of seizures, death of brain cells, coma and even death, we ask -- it's a good thing of course, but we ask -- how it is there is no physical impact on [Baby F] beyond a vomit early on and a raised heart rate and respiration for some hours but which came down to acceptable levels.
We don't invite speculation, we don't invite guesswork, but since you have to be sure of the basis for any conviction and since we challenge that Ms Letby is guilty, we have to look at what lies behind this and it is an observation we make that, fortunately, neither of these babies displays anything like the symptoms you might expect from what we have been told about the impact of this type of concentration of insulin and low blood sugar over a persistent period.
When asked about this, Professor Hindmarsh furthermore said:
"In addition to sweating or an increased heart rate, and the response is variable, the first presentation could well be and often is collapse and seizure."
You can evaluate that, ladies and gentlemen. A great deal is made of that, but that isn't what we have, fortunately. And we identify that is something we regard as a question, something worthy of consideration when weighing up, as it's put, the integrity of the material we are relying upon.
Ms Letby's actions in this context, what she did do and what she didn't do. [Baby F] received dextrose to correct low blood glucose. But it still remained low without mounting damaging effects, which we observe may be difficult to understand given the expert evidence, but then think of this: Ms Letby was involved in giving dextrose during the shift. We have that at 4.20 on tile 198. It's difficult, we observe, to see how anyone would be giving a dose of insulin with an intent to kill when they know that low blood glucose, which is something that will be tested for, will lead to dextrose being given to correct the problem.
And it's a strange intent to kill, we say, where the obvious remedy is inevitable and the person who we are told is alleged to have the intent is then involved in giving the remedy, as Ms Letby undoubtedly was. That brings us to the question then of what we can be sure about what did happen in the event that we can rely upon the analysis.
Who did it and how did it happen? The straight point on the evidence, we say, is that we do not know what has happened here or who is responsible insofar as this is deliberate, if this is, and these are matters for you to look at. The prosecution asked all the nurses to come and give evidence and they asked most of them if they'd administered insulin to [Baby F]. As it happens they didn't ask [Nurse B] or [Nurse C] but that's an oversight, we don't make any point of that, we are just observing it.
They wanted to make a point, didn't they, of how many people say they didn't give insulin to [Baby F] and narrow that down to Ms Letby, and all the witnesses have said no. Interestingly, we observe, they didn't ask any of the doctors at all on either of the insulin counts. We are not making an allegation but we observe that does show a tendency on behalf of the prosecution to put doctors in a place beyond criticism generally -- and you have seen that -- including a refusal to acknowledge medical mistakes that we say has more to do with an attitude of where the prosecution is based than the actual evidence.
Keeping in mind the burden and the standard of proof, we say there are four reasons why we cannot be sure, because we say there's a lot we can't be sure about here. The weight of these counts, the weight comes from reliance upon the analysis and we recognise there are questions we can ask, but we may well get to the point that you find that established. We challenge it, we try to do so in a proportionate way to what we can say, but after that there is a hug gap as to what has happened and that gap is filled by, we make no apologies for saying this, the presumption of guilt that operates by saying: put it all together, it must be her. That's a very self-perpetuating way that this prosecution case works. In fact, if you strip that away and look at this through the presumption of innocence there are a lot of questions to ask and we say we are a long way from being sure. There's a number of reasons.
The first is there is no evidence that Ms Letby interfered with any bag of TPN. None. Blink, ladies and gentlemen, and you will miss that point. In fact you have to blink at least 22 times in this case to miss the point, at least 22 times or perhaps nearer 30 by the time we get to the end of it. But as you know, not one witness sees Ms Letby actually doing any of the acts that are alleged to amount to harm that are brought against her and the same goes for the insulin counts and that is no small matter, is it, because you know the insulin is stored in a fridge in the equipment room that is used by all nurses on the unit at any time to have a hot drink, to use their phones, to collect any of the many items of equipment or medication that are needed constantly and consistently on the unit and are stored in that room.
You've seen photos of it, it's full of all kinds of things. Anyone can go in at any time and the likelihood of being seen interfering with insulin or a TPN bag, or both, by someone coming in or passing would be very high and the risk would be obvious.
We say there would be nothing quick about what the prosecution allege. It involves getting a syringe, getting the keys, drawing up insulin, getting out a TPN bag or the TPN bag, and injecting it in without doing anything that arouses suspicion and without getting caught -- and potentially multiple times is how this allegation is now put. You'll remember in 2015 the syringes were not kept in the same room as the insulin and the TPN.
The prosecution have suggested alternatively that insulin was introduced when the bag was hanging. Think about that, hanging. Maybe to come up with something that sounds easier to do, but it isn't, is it? It still involves getting insulin from the fridge and the equipment room, getting a syringe or having a syringe, getting it in there, getting into the bag without detection, all of which is visible, when there's no reason for anybody to be injecting anything then into a hanging TPN bag. How on earth is that going to happen? Who's going to do that? There's windows around the place, there are people everywhere.
If it sounds like I am just giving lots of reasons why she couldn't have done it, you're dead right, I am doing, because there are lot of reasons why this would go noticed, spotted and the risk is obvious. It's easy to make the allegations, ladies and gentlemen, but it would be quite difficult to carry this out.
You'll keep in mind, when we're looking at circumstances and the bigger picture, this isn't the only allegation where, on the prosecution accusations, Ms Letby must have done all kinds of things and not been seen. That applies to everything, everything, with just the same force as the prosecution rely upon the generality of matters and the similarity of matters in their case. We say it becomes increasingly unrealistic to maintain this as we go along event after event. So that's the first matter.
The second is that, as a matter of fact, and this is matter of fact, there is no exclusivity about access to that bag. Whatever has happened, it's a fact. It's not as if it's something that is only in Ms Letby's possession and therefore we know if something has happened she must be the one who has done something. She's not the only person with access to the bag that was hung at 00.25 or any other bag.
It's a prescription bag, prescription bags are ordered in the morning and brought to the unit around 4 to 5 pm. So the bag was there for about 3 hours before Ms Letby was even on duty. Once she's on duty, the bag was on the unit for over 4 hours before it was hung.
Again, I make it absolutely plain, this is not an invitation to speculate, speculation is wrong, but it's identifying where there are inherent weaknesses in the evidence that reduce the degree to which we can be sure of what is happening. We cannot identify anyone who interfered with the TPN bag, just like no other witness can. But this count is about you being sure that if the insulin was there it was Lucy Letby and only Ms Letby who did this. We make the obvious observation that there is nothing exclusive about access to that bag or any bag on the unit. Not exclusive to her. That's the point.
If there was, it would have been unnecessary for the prosecution to go through that process of bringing on so many people here and asking them, most of them, "Did you do it?" Wouldn't need to do that.
Third, we know that Ms Letby was not on duty at the time the bag was hung from which the sample was taken and was analysed and when low blood glucose was ongoing and had been ongoing for some hours. Let's move to one side for the time being the business of whether that analysis reflects how the bag was earlier on. Professor Hindmarsh has explained why he says it's reasonable to say that it does and I have dealt with that.
But what we do know is, after she had left the unit, insulin continued to be received or given to [Baby F] via a Maintenance bag that had been hung after she hadn't been there for some hours. We say, ladies and gentlemen, it is incredible, incredible, to maintain she is responsible for this and incredible for a number of reasons.
First of all, the evidence -- and this is in the case of [Baby F] in particular we're looking at -- is that the TPN bag, the line and the giving set were all changed around 12 noon. That is absolutely clear. It cannot, we say, sensibly be challenged and isn't challenged. That's at some point after Ms Letby had gone off duty.
After she had gone off duty it became apparent that [Baby F]'s long line had tissued and that seems to have been identified on Dr Saladi's grand round between 10 and 11 am on the 5th, certainly not before. And as you know now, that meant the long line had to be changed and in these circumstances, if the long line is changed, so is everything that goes with it: the long line, the TPN bag and the giving set.
Shelley Tomlins explained this on 23 November and was clear that there would be a new giving set:
"Everything is removed, the bag is changed."
This is clear evidence unchallenged. [Nurse C] on 24 November explained that:
"In these circumstances the long line has to be changed and everything with it: the long line, the TPN and the giving set."
The significance of that is obvious, isn't it, ladies and gentlemen? That's the evidence of the nurses and it's consistent with entries in the documents that we have that show the changes that were made and references to this in the note.
It means there is no way that what happens when Ms Letby was not on the unit can be blamed on a continuing dose of ever-diminishing bits of sticky insulin, which is the laughable -- I say why I use that word -- laughable theory used by the prosecution to deal with the obvious problem of Lucy Letby not being there when dextrose bags were changed multiple times in the case of [Baby L]. And I say laughable because if you were watching Professor Hindmarsh, he laughed when I asked him about it. That's perhaps a matter of expert evidence and we'll come to that when we deal with [Baby L].
But look at what happened if you are in any doubt as to how unlikely it is that Lucy Letby could be responsible for what happened with the insulin in that bag. The prescription bag was removed and the line turned off. The bag was replaced with a fresh bag, a new line, a new giving set. But because there's no replacement bag of prescription TPN, the nurses used one of the stock Maintenance bags. That evidence again is absolutely clear. So it wasn't replaced with a bag of prescription TPN that had been prepared specifically for [Baby F], it was replaced with one of the stock Maintenance bags.
We say particularly telling, as we begin to put this together, is what Shelley Tomlins agreed about this. I asked her whether the reason they had to use a stock bag was because the line tissuing was something that wasn't predicted, to which she said, "Exactly, yes". That is such an important aspect of this count so far as the defence are concerned because now we have a tissuing of the line that happened hours after Ms Letby had gone off duty, that couldn't have been predicted and was not foreseen, and that led to a change in the line and the bag, and yet the blood glucose continues to drop once the new bag is put up and the sample taken at 17.56 identifies that high level of artificial insulin.
So the evidence is that the stock bag, if this is right, must have been contaminated with insulin. And that follows from the way the insulin continued throughout 17 hours. But we ask, I'm sure you're there already, how can Ms Letby be held responsible for that second bag on any fair or logical basis and the high level of insulin in a bag that no one could see would be needed that comes into play hours after she left the unit?
Whatever happens, however we look at this, we say, moving on, ladies and gentlemen, the case against Ms Letby becomes increasingly difficult to swallow when we look at the situation concerning Maintenance bags. This is like a series of Russian dolls of improbability here, it goes on and on, the contortions that are necessary to sustain this allegation. What's the next thing that comes up? Let's think about Maintenance bags. Because for those people or anyone committed to convicting Ms Letby, despite the completely unexpected nature of what happened, it is tempting to say she must have done a Maintenance bag too, she must have had that ready, lined up ready to go for this unpredictable, unforeseen event.
Of course, that begs the question, doesn't it, why, first of all? Why would she? A TPN bag lasts 48 hours. That's the evidence. We know that. The unit keeps up to five Start-up and five Maintenance bags at any one time and we've been over this evidence with Mr Allen, Miss Tomlins and Nurse Yvonne Griffiths. She was shown the picture of the list on the fridge and she was clear that whatever is on that list, the actual figure was five of both. Right? Five of both. Right? That's the evidence.
Then we were shown the requisition book, that book where you put in the chits of what you need to have replaced from items used relatively regularly on the unit to get fresh supplies. And you may not remember but we know two Maintenance bags were ordered on 17 July, the 17th -- and the date we're looking at, as you'll know, ladies and gentlemen, is round about -- is 5 August. So two bags ordered on 17 July, no more ordered until one on the 11 August, from which we say it's reasonable that the following follows.
First, that there were five Maintenance bags there on the 5th because there had been no need to order any more than the two that had been ordered on 17 July. If they'd be getting used up there'd be more orders. Seven weeks -- several weeks, sorry, after replacements are ordered on the 17 July no more were ordered so we take it those are topped up, so to speak.
Second, the bag ordered on the 11th, that's the first time anyone orders another bag, we say it follows that must be ordered to replace the one used by Shelley Tomlins and [Nurse C] on the 5th.
That follows. You can see the orders: two on the 11th, that's where we are at the time we get to 5 August; and then about a week later another bag is ordered. That is evidence that's it.
So the evidence indicates there are five stock Maintenance bags, which there should be because that's what they have on the unit. And if we are going to say they weren't, that is speculation, guesswork and contrary to the evidence.
So even if somebody had guessed somehow that a Maintenance bag might be needed for an unpredictable and unexpected event, which is pretty unlikely we say, they are not to know, are they, what bag would be taken? How are they going to know, if this is targeted attack, how are they going to know what bag is going to be taken? They'd have to do the lot to make sure there happened to be a stock bag for the unforeseen event of [Baby F] needing it.
You'll keep in mind, ladies and gentlemen, as [Nurse C] explained, that stock bags are not stored in any particular order. So to contaminate one would be utterly random and no way of doing so in a way that would be targeted or meant to be used for [Baby F], or for anybody in particular. That would be utterly random, even if you did think of having one ready just in case -- and why anyone would think of just one just in case beggars belief.
It is, we say, therefore unreasonable to maintain Ms Letby put insulin, or anyone, in a Maintenance bag that they could have not foreseen would be needed because it shouldn't be, should it?
It's equally incredible to suggest that she, or anyone, had done this to more than one or all of them because that's obviously the way the mind will go next, won't it, in this Russian doll of improbabilities? Ah well, must have done all of them. Really? Where none of those spares, it seems, ladies and gentlemen, ended up causing blood sugar crashes with other babies on the unit. None. There is no evidence that any other baby was affected at this time and you can be sure that you would be told if there was. There is no other evidence that establishes that. We've had lots of documents from other babies at the time around the unit related to what's going on. The only evidence we have is of what happens with [Baby F] at this point.
We know the other bags could have been used in due course elsewhere. We saw that more Maintenance bags had to be ordered on later dates from the requisition book. But in addition to being incredible, this undermines the repeated use of the word "targeted attack". It cannot be targeted if someone doesn't know who's going to need it and it could have been given to anyone.
How on earth is this meant to work? So unless Ms Letby had a Nostradamus-like ability to read the future and predict a Maintenance bag would be needed for an unforeseen event and know exactly which bag to do so that when someone came to get the bag unexpectedly for the unexpected event they would go to the one bag that had been done. But for that this is completely unreasonable.
It becomes less and less likely that this could be done, and for a basis of being sure we submit it cannot be. This follows from the evidence: that first bag should have lasted 48 hours; events take place when Ms Letby wasn't there that are unpredictable and unforeseen; a random bag is taken from a stock; there is no way one bag has been done or all of them done. None of that makes sense.
This isn't a party game, ladies and gentlemen, of "Let's Get Letby". We're not playing that. We're not here to invent explanations that ignore the evidence or are designed, working on a presumption of guilt, to find a way through it. Whatever happened with the TPN bag or TPN bags, there is, we say, no sensible way of claiming that Ms Letby can have been responsible for putting insulin in the second bag. She cannot have foreseen that, no one could. And we say if she may not be responsible for what happened with the second bag, start there. If she may not be, that fundamentally, fundamentally undermines the accusation that she put it in the first, or any one, unless we're going to have speculation as to lots of different people doing things.
If she didn't or might not have done the second that is no basis to convict on the first. That would be contrary to the whole way this prosecution case works and we would be entering very new and speculative territory.
One final detail: we know Ms Letby was caring for [Baby F] on other occasions. Amongst the many, we say, illogicalities and inconsistencies on this count, this is another one that goes against any reasonable view that there is an intent to kill at work here, putting -- looking at the other criticisms we make and putting this alongside it.
Putting it bluntly, despite all that is said about the capacity of insulin to harm and its lethality in high doses, this doesn't come close. This is nowhere near to what you would expect, we say, for an allegation of attempted murder. And connected with that, nor is it, when you consider the position Ms Letby was in with [Baby F], something the prosecution say she had planned, using the emotive expression, "a targeted attack".
We have seen, we looked at this in evidence from the charts, the TPN charts, the blood gas charts, that she was looking after [Baby F] on night shifts from 1 August, the 2nd, the 3rd, and then the 4th. Then a blood gas chart records her caring for him next on 8 August.
The fact is that there are multiple opportunities and she didn't take them. And we say that is because this is not something that she is intending and it is inconsistent with that.
On the other hand, given Ms Letby's work pattern generally and the evidence we have, there are many nights when she was looking after the sickest babies, so it follows, doesn't it, if something goes wrong or something happens she has a high chance of being there and getting the blame for that because she is there?
Just stepping back and looking at the situation with Lucy Letby and [Babies E & F], Ms Letby's evidence is that she believed she had a good relationship with [Mother of Babies E & F]. However everyone feels now listening to this, that is how she saw it at the time. We've looked at various evidence relating to searches and documents. But I made reference to the diaries in this case. In fact further review establishes in the 2015 diary there's an entry for [Baby E] on 3 August, which is the day of her shift when she looks after him and we run into his deterioration that night.
Now, he was plainly on her mind. As it happens, and you may think this is significant, he is the only child noted in that 2015 diary, which we say fits no pattern at all consistent with these allegations. And revealingly, there is no entry at all for [Baby F]. So unless we're going to start inventing, "It may be this, it may be that", that doesn't sit well.
We know that Ms Letby searched for [Mother of Babies E & F] on Facebook and she did that a number of times, but you'll keep in mind she searched for many parents, some of whom are connected with babies on this indictment, there are parents of babies on this indictment who were not searched for, and there are parents of babies on the indictment who were not and parents of babies who were not on the indictment. Every permutation.
There is the card that was photographed that had been sent to her by the [family of Babies E & F]. The amount of this activity as a whole seems particular to them and to [Mother of Babies E & F] in particular, the interest there. And looked at through the lens of the presumption of guilt, which is the way the case is presented, you are invited to take the very worst interpretation.
But we say that doesn't follow, does it? Because it doesn't fit with patterns with other children, whatever entry we have in a diary, whatever searches there are, it isn't part of a pattern. It isn't consistent with that. But however it feels and sounds now, her evidence is that she felt close or had a good relationship with [Mother of Babies E & F] at the time and it is Ms Letby's way, we have seen from her use of Facebook in particular, to take an interest in people who she meets, who are on her mind, unrelated entirely with any allegation. That's just how it is. You may know people who are like that. They think of someone, they're interested in someone, they search for them, they look for them, they google them, they go on to the next one, boom, boom, boom, rapidly.
That photograph of the card sent by the [family of Babies E & F] to the unit that was taken by Ms Letby on 20 November at 3.40 am whilst at work, the fact of that photograph, ladies and gentlemen, when we step back, we say, doesn't prove anything. It's a card that had been sent to her place of work and which she photographed when she was at work there, not because she'd set it up for some delight that that gave her, which is the way it's been presented.
We'll look at this when we come to the card that she photographed and she sent to [Baby I], or her family, on the day of [Baby I]'s funeral. But it's a point we remind you of that photographing cards is one of the things that Ms Letby does, or she says she does, irrespective of this allegation and we actually saw some evidence that supports that and I'll come back to that when we look at the case of [Baby I].
When we come back to the case of [Baby F], ladies and gentlemen, when we look at the totality of the evidence there, however it is presented, however much the prosecution rely upon it, once you get down to the fundamental mechanics of what has taken place, we say it is impossible, there is no proper basis for being sure that Ms Letby was involved in doing anything to that second bag unless we perform contortions that are utterly unrealistic. If that is the case, we cannot be sure. We may not always be able to be sure but if that's where we get to, that is not guilty, it is not guilty.
I pause as I do, ladies and gentlemen, and then I'm going to turn to the case of [Baby G]. You can put the chart away, if you like, a good opportunity to do that.
(Pause)
With [Baby G], ladies and gentlemen, we're dealing with counts 7, 8 and 9 on the indictment. So [Baby G]. [Baby G], you may recall, was born actually at Arrowe Park Hospital. She was very, very preterm, extremely preterm, 23 weeks and 6 days. She was born on 31 May 2015, just before midnight, at 23.57, 23 weeks and 6 days, 535 grams. That's an extremely low birth weight.
The key events in the chronology are as follows, just to remind us all. Having been born on 31 May 2015, on 13 August 2015, she was transferred to the Countess of Chester neonatal unit. Whilst there, in the very early hours of the morning of 7 September 2015, [Baby G] experienced projectile vomiting and desaturation after feeding, that was followed by apnoea and desaturations and problems with intubation and ventilation, which went on for some time. It's in particular the projectile vomit and desaturation at -- I'm going to put this neutrally at this point -- between 2 and 2.30 because there is an issue, isn't there, on timing, but you know where we are, at or about that time that forms count 7. We say the evidence is very clear, we're talking 2.15 but, just putting it objectively, between 2.00 and 2.30 at this point.
On 8 September she was transferred to Arrowe Park Hospital and she remained there until the 16th and then on the 16th she was transferred back to the Countess of Chester. And on 21 September, around 10 am, there was an episode of -- with two projectile vomits and a brief self-resolving apnoea and desaturation. That's count 8, that morning of 21 September.
Then that afternoon, around 15.27, there was apnoea, desaturation and bradycardia after she'd been left behind a screen with the monitor off; that is count 9. So counts 8 and 9 are on the same day: count 8 is in the morning with vomiting and count 9 is in the afternoon, the incident with her behind a screen and the monitor off.
It is important to keep in mind, we say, that where [Baby G] is concerned there was a far longer course of treatment and events that took place and a broader area of that outside the three events on the indictment, in particular that period at Arrowe Park before she came to the Countess of Chester.
There were also, we looked at this with the evidence of Sandie Bohin, records in the entries for events after 21 September, so after the events on the indictment, in particular events where vomiting was recorded, and I'll remind you of some of the evidence about that. That's, putting it is neutrally as I can, the chronology we're dealing with.
With regard to count 7, which is the incident between 2 and 2.30, the projectile vomiting, Dewi Evans said that is air and milk down the NGT causing abdominal distension, forced down it. And Sandie Bohin says it's excessive milk forced down the NGT.
And when we get to count 8, on the morning of 21 September, the mechanism given by the experts there -- Dewi Evans says that [Baby G] was given more than the recorded 40ml of milk and it was excessive and it was milk or milk and air. Dr Bohin says she was given more than the 40ml of milk, and you'll remember they say this is a mathematical calculation they were doing about the mathematics. I'll come back to that. More than the 40ml of milk, it was in excess, that that caused the vomiting. And the prosecution case, of course, is that these things are all being done with the intention to kill.
There are many areas of this case that are upsetting. It's invidious and impossible to begin to compare. It's all upsetting, it's all very emotive. Hearing about how poorly [Baby G] has been and the injury, the brain injury she sustained and the consequences of that to her and her family is desperately upsetting. It really is. It's heartbreaking. We're back in the position that every one of us here, we're all made of the same stuff, is going to be moved by it in the same way.
You'll understand, however much we're affected by it, that feeling, which is natural, doesn't establish what the cause is. It doesn't help us establish cause. And it certainly doesn't help us establish whether or not we can be sure that Ms Letby did what is alleged against her. But you'll understand the obvious dangers when we're faced with something as moving as this. We just ask, with absolute respect to [Baby G] and her family, please don't do that when it comes to forming your conclusions here on these facts.
The expert Stavros Stivaros, who is the brain specialist who talked about the imaging, and we heard evidence read from him, said the scan, the scan, which identifies the injury, cannot determine a cause for the injury. Very careful not to link up the fact there is an injury, with, "Well, there we are, it's been done", as the prosecution say.
Nor did the brain scan show that what happened on 21 September contributed to any. We know that injury was first identified after the events of 7 September. So it seems to be connected with that period, doesn't it, of prolonged medical activity which began with the projectile vomiting, but then we have, it seems, hours of the ventilators not working properly and tubes being changed, and Alison Ventress in particular told us about that, none of which shows how the injury was caused.
The case against Ms Letby, we say, when we go to the evidence, we say the allegations are weak and actually when we get into the detail here they go to demonstrate shortcomings in this case generally because they provide very clear illustrations in different ways of how blame, we say, is placed improperly and unfairly on Ms Letby. We say that applies elsewhere in this case, but we say you can see it at -- it's certainly at particularly points on these charges of [Baby G] that you can absolutely see that happening.
With count 7, the projectile vomiting at or about 2.15 on the morning of 7 September, we say that Ms Letby cannot have done anything to cause this on the evidence. And with regard to the vomits in the morning of the 21st and the mild desaturation, all of which was brief and self-resolving in large part, we say that's part of an ongoing clinical picture for [Baby G], of vomiting, after the 7 September incident.
We say that the incident later that afternoon when [Baby G] had been left behind a screen with the monitor off is something she is being blamed for but for which she most definitely is not responsible. The evidence on that is compelling and it is shameful the way she is now being held responsible for something when we know, we know, more about the circumstances now than we ever did at the start of this trial thanks to the frankness, actually, of [Nurse B]. Maybe a little late in the day, but we got there. How would this look if she hadn't said what she said?
All right. Let's just start with an introduction to this. The margins of viability or the margins of survivability, ladies and gentlemen, is an expression that's been used by medics and the prosecution experts in this case. And we can see from the extreme prematurity and very low birth weight of [Baby G] she was in that perilous category when she was born.
She had many problems, she has a history of desaturations and problems throughout her time at Arrowe Park and before going to the Countess of Chester Hospital. That was something that I reviewed with Dr Bohin when she gave evidence about this. We actually looked at lots of the material that will be, I anticipate, in the additional section for [Baby G] because it wasn't material on the tiles, it was material from the exhibits with J numbers, and we went through the history at Arrowe Park.
To begin with Dr Bohin said that what we were looking at were just the sort of things one would expect to find in a premature baby, but actually that picture persisted right the way through, right up to the point of transfer to the Countess of Chester Hospital.
So it's not just that she was premature -- or rather it's not just the immediate consequences of prematurity. There were problems, we went through, right the way from 2 June -- she'd been born on 31 May -- 2 June right up to the transfer on or about 4 August. In fact you may remember the transfer was even delayed on 31 July because [Baby G] had desaturated to 42.1% as she was about to be transferred and she's 2 months old by then. These things are important because of the repeated assertion of how stable and how well the babies are doing and how that is used as a yardstick or a starting point to measure what happens with Ms Letby. If we're going to do that, let's be realistic about the conditions of babies like [Baby G].
Alison Ventress agreed in cross-examination on 1 December that infection is a concern with a baby like [Baby G]. It's a concern with all babies, of course, but it's a particular concern with a baby like [Baby G]. It's something to keep in mind when we look at the first incident in particular because you may recall there is a very high series of CRP readings that follow on from that within the 48 hours that follow. Very high.
Not only that, there are two other things we say that show she was prone -- two other things she was prone to illustrated by her history over the 2.5 months before transfer to the Countess of Chester. So this is whilst at the Arrowe Park Hospital.
First of all, abdominal distension. That was recorded on a number of occasions. We went through them, ladies and gentlemen. It happens over the period that she was there.
Secondly, blood secretions. Blood secretions. Given how much is made of this regarding entries in the clinical notes, in particular during the early hours of the morning of 7 September, it is really important just to keep in mind that this was something that also happened at Arrowe Park.
We saw -- I will give you note, I am not going to put it up, ladies and gentlemen, but it should be available. At page 4510, which is 14 June, we looked at this with Dr Bohin, there were bloodstained secretions from the ETT. Dr Bohin said that may be because she'd had a low platelet count but I took her to the records that showed [Baby G] had had a platelet transfusion 10 hours before.
If this sounds like just so much detail, you'll understand, ladies and gentlemen. If we're in a case where allegations are thrown out at Ms Letby, "Oh there was a secretion with the ETT, you did it", and literally that stuff came on the hoof during cross-examination, it's important to recognise, no, on the evidence this was going on before she ever went to the Countess of Chester Hospital. And then we have that on 14 June.
On 17 June, page 4282, the ETT is blocked by an old clot or secretions and on 19 June, page 4536, we have pink bloodstained secretions on suction. And on 29 June, page 4315, we have fresh blood on suction after a desaturation down to 50 and a bradycardia of 65 beats per minute. And ladies and gentlemen, at Arrowe Park Hospital that was diagnosed in the notes as "probable pulmonary haemorrhage". All right? Dense stuff.
We went through it with Dr Bohin before we actually went to the events, but it is important, we say, if we're going to start from a level playing field in assessing what we find with [Baby G] as we go forwards into how she did at the Countess of Chester Hospital.
I'll turn then, ladies and gentlemen, before we break, if I may, to count 7. So we're dealing now with the first of the [Baby G] allegations. Now we do say at 2.15 on 7 September, and we say that because that's consistent with the evidence and that's really the way this case was presented at the beginning, up to the point that it became increasingly apparent with the evidence of nurse Ailsa Simpson that the prosecution were going to have to shift the timings a bit to get round the problem created by the fact that she said she was with Ms Letby in the minutes, several minutes, before the period of vomiting, almost giving Ms Letby an alibi in that way.
The allegation on count 7 is an allegation that Ms Letby force-fed milk to [Baby G]. That's the allegation. There is, of course, no evidence she did that. You're entitled to look at all the circumstances and draw reasonable inferences, but outside applying the usual presumption of guilt, it is very difficult to see what the basis for guilt is meant to be apart from the fact, of course, she was on the unit and it happened.
The allegation is force-feeding milk or doing something to cause desaturations as the morning proceeded, and we ask, how, what opportunity? The allegation has developed in the course of the trial that she somehow made her have bloodstained secretions at least at some point whilst resuscitation was taking place. With all the medical staff there? How? How? Why is that different from other bleeds or secretions that [Baby G] had before she was at the Countess of Chester?
The allegation also is that air -- the allegation developed into the forcing of air down the NGT, maybe residual from the alleged attack at 2.15 or even maybe during the course of the treatment because, you'll remember, we have the 100ml aspirated at about 6 or 6.15 in the morning. Ms Letby is blamed for that too, 100ml. After [Baby G] had been watched by staff giving her intensive treatment for hours after she had been repeatedly, as it happens, bagged and Neopuffed and her abdomen wasn't actually noted as distended, not in the notes, until 6.10 am, which was after she'd been having air pumped into her on and off for hours as part of a response to deterioration. But that's worked its way into this amorphous allegation.
I start with the allegation at the point that it's said that she had force-fed milk down the NGT. That may be an appropriate point to stop, my Lord, looking at the time.
MR JUSTICE GOSS: Certainly. We'll have a ten-minute break then, please.
(11.40 am)
(A short break)
(11.50 am)
MR MYERS: Ladies and gentlemen, I was going to turn to what's said and what happens with 7 September, so the allegation that Ms Letby had forced milk down the NGT.
Obviously, the key matter for you, bearing in mind what has to be proved and his Lordship's directions, are that the prosecution prove, so you can be sure, of the causing of harm with the intent, which is the intent to kill for attempted murder. So that's the case, whatever I say about the facts. But it is significant, we say, the way in which certain aspects on this allegation have changed since the start of the trial. That is significant.
So I'm recognising it's still a question of how they proved the allegation. The way it changes in the course of a case is not a defence, I'm not suggesting that, but we do say it shows a lot about where we have to be unsure about what's being alleged.
Dr Evans and Dr Bohin based their opinion, certainly before the trial, that air or air and milk had been forced down the NGT on this fact, that there had been a projectile vomit and that [Nurse E] had aspirated [Baby G]'s stomach before the 2 am feed. That was a fairly key way in which they had come to allege or propose a mechanism of harm that they did. I want to focus on that first because, before they gave evidence in this trial, both Dr Evans and Dr Bohin based this allegation on that belief that [Nurse E] had aspirated the stomach contents prior to feeding and the prosecution case was based on that. That is what this was based on. In other words, that the stomach had been empty before the 2 am feed and excess milk must have been introduced deliberately: we know it's empty because [Nurse E] would have aspirated it. That was the assumption, would have taken milk out.
If you are in any doubt about that, what the prosecution said in opening to you on 11 October when dealing with this was the following:
"At 2 o'clock in the morning on 7 September, [Nurse E] aspirated the NG tube. So she drew up to see if there was anything in [Baby G]'s stomach. She checked that there was no residual milk [that's the important point], she checked the positioning of the tube and then she fed a sleeping [Baby G] 45ml of milk through the tube."
So it was alternate, bottle, tube, bottle, tube, and this was the tube:
"When she had drawn up the aspirates she found minimum aspirates of a quantity that was not sufficient to prevent feeding and meant importantly, before she was fed, [Baby G]'s stomach had been empty, pretty much empty."
That assertion that the stomach was empty was based on the assumption that [Nurse E] had aspirated the contents prior to the feed. That's how this came into being at that point.
It'll help if we have the key entry on the feeding chart before us, ladies and gentlemen, so I'm going to ask Mr Murphy if he'd put up tile 75 from the [Baby G] sequence. You're familiar with this, ladies and gentlemen. It's the entry by [Baby G] for 2 o'clock -- thank you. A 45ml feed via the NGT. And of course, this becomes significant shortly, but a pH of 4.
Now, when we came to the evidence of [Nurse E] on 2 December last year, we discovered that the assumption that she had emptied the stomach before feeding was wrong. The assumption upon which this allegation had been based in that sense was wrong.
[Nurse E] made it clear in her evidence she would not have emptied [Baby G]'s stomach. That's something that would only be done routinely with smaller babies. She said she would have taken just enough to check the pH but not empty the stomach. So this is utterly different from the way it had been assumed this had happened up to this point, up to the point [Nurse E] gave evidence.
She said -- this is all on 2 December, page 78 that she didn't recall aspirating [Baby G] around the 2 am feed, there was no way of measuring if there was undigested feed there, with bigger babies who appear stable, and this is [Baby G]:
"You wouldn't aspirate at every feed, you would work on the assumption that milk for earlier feeds had been digested, but if something has changed so that milk was not being digested, new milk would go on top of undigested milk."
That is absolutely not the way that the experts had thought this would have happened. They'd said the stomach had been emptied first, and it's not the way this was opened to you, understandably, the prosecution relying on what their experts said and their understanding of the evidence. But this is a crucial difference because the way this began was that the stomach was empty, we take that as given, and so a lot of milk must have been pushed in to cause the projectile vomiting.
Suddenly now, after [Nurse E]'s evidence, that all falls apart because there could be any amount of milk in [Baby G]'s tummy, so it would take less. This is milk from earlier feeds, so when she comes to the 2 o'clock feed, that could have gone in on top of milk from earlier feeds. I make that quite clear, the allegation originally was that there would have been no milk from earlier feeds because the stomach would have been aspirated. No. [Nurse E] was clear. It doesn't follow at all. When she put that milk in at 2 o'clock there could have been milk there. There could be undigested milk if something has changed for whatever reason, you wouldn't know. So suddenly it no longer follows, does it, that if there's a projectile vomit on that basis it's milk being forced in after 2 o'clock?
This we say, ladies and gentlemen, created a fundamental problem for the prosecution and their experts because up until this point it had been presumed that what you're looking at here was the only milk that could have been in [Baby G]'s stomach prior to the projectile vomit. And on the evidence of [Nurse E], that presumption, that assumption, is not well made: there could have been milk there from previous feeds and this could have been sitting on top of it.
Now, that can't be helped, that's really the purpose of a trial, isn't it? That's why we do it, to test assumptions and assertions and this one failed. That's the process working properly.
But what we are critical of is the way then that the way the allegation was put morphs and, we say, on an unjustified basis it changes, doesn't it? Because the reaction of the experts, and in due course the prosecution who follow them, is to switch attention to pH now. We've moved to pH. Let's have a look at how this was done. This actually came out of something we say that happened towards the ends of [Nurse E]'s evidence. At the conclusion of her evidence and at the conclusion of any witness's evidence his Lordship is quite entitled to ask questions to deal with any matters that he has identified that you would be assisted upon to get further material from. And he did that on this occasion. I just mention it respectfully, it's 2 December. Just so we can follow this through.
It's strange reading out what his Lordship says, but the transcript is this. The question from his Lordship to [Nurse E]:
"Question: Just this, about not knowing whether any of the previous feed of the 45ml had been digested."
And it was the 45ml feed before this, that's the point:
"Question: Does the pH figure that that you took at 2 o'clock give you any information or not about that?"
[Nurse E] said:
"Answer: Not really because if the milk is in the stomach you'd have some kind of acid reaction anyway regardless of how much milk was there.
"Question: Yes, so there's simply no way of knowing?
"Answer: No. The baby may vomit if there's more milk there than they can cope with but if there's no vomit you wouldn't know."
So she was saying the pH there doesn't help us with whether or not there was already milk in the stomach when she did this feed. That was her evidence. And that's where we got to.
So end of that issue on the face of it. No. No. The issue was seized upon by Dr Evans and then Dr Bohin when she came to give evidence, both of them saying now that low pH meant acid and therefore no milk in the stomach. I don't know if you recall all of this, ladies and gentlemen.
So what they did is to then, you might say, switch the line of attack. We're no longer talking about a stomach would have been empty because you wouldn't feed without emptying it, that has gone, that failed. We now have: ah, no, no, the stomach was empty because we have a pH of 4, which means it's acid which means there was nothing in there at the 2 o'clock feed and therefore anything excess has been forced in after that rather than this on top of old milk. That isn't of course something that had been dealt with in the reports but they're entitled to react to the evidence as it develops, we recognise that.
But they would not accept that a pH of 4 meant the stomach might have milk there and Dr Bohin was particularly vigorous in her resistance to that. When she was asked about it by the prosecution, looking at this, she said:
"Yes, that's acidic. We know that [Nurse E] -- she told us, that was her signature."
Sorry. She was asked:
"Question: That's [Nurse E]?
"Answer: She told us that's her signature.
"Question: Is that pH value of 4, so an acidic value, consistent with there being a large amount of undigested milk in the stomach?
"Answer: No it's not. Milk is neutral and gastric contents are acid. A pH of 4 is very acidic. If there was undigested milk or milk in the stomach that would buffer or neutralise the pH and you'd expect the pH to be higher than that."
You see that, ladies and gentlemen? In other words she was saying, ah, no, a pH of 4, we know that's an empty stomach, or pretty much empty, because pH 4 is acid and if there was milk in there we'd have a higher pH. So looking at the pH we can still say the tummy is empty.
And in cross-examination with me she absolutely would not accept that a pH of 4 meant there could be milk there in any significant amount, rubbishing the evidence of [Nurse E], as it happens, who had said the opposite in answer to his Lordship's questions and mine. But that isn't the first time she brushed aside what experienced nurses have to say when it didn't fit in with the impression or her version or how she wanted to describe what happened.
You'll recall I reminded you yesterday what she had to say about the dark bile aspirates with [Baby C], clearly recorded as that, to which she said, no, the nurses could be wrong, it could be blood. Remember? They got it wrong. She wasn't even there. We say this nurse did not get that wrong.
However, there is a way of looking at this. We know, whatever Dr Bohin says, that she is not right. She's not right and what she has said is literally blown out of the water by the evidence in the case of [Baby P], which demonstrates there can be significant quantities of milk and the pH can still be acidic. I'm going to come to that in a moment, but just so we are absolutely clear, the point is this: we had started with it being said that at the time we're looking at that stomach must have been empty and therefore a projectile vomit has to be that more milk was forced in after that 45ml. [Nurse E] ended that by saying it doesn't follow the tummy was empty. Fine. We then switch to saying, from the experts: yes, it was empty because it's pH 4, that's acid, there couldn't have been milk in when she out that 45ml in. Right? That's where we got to with the experts: disregard what the [Nurse E] says, it would have been empty.
No. If we put up tile 24 from the [Baby P] sequence, which is his fluid chart. You'll probably remember it when we see it, ladies and gentlemen. Just enlarge the bottom part. Let your eyes zero in on this, ladies and gentlemen. Remember what we're dealing with here now.
I'm going to ask you to look at this, keeping in mind Dr Bohin's expert evidence and her stalwart refusal to agree with my suggestions to her that you could get an acid pH and still have a substantial body of milk in the stomach. If we look here we can see, can't we, at 20.00, with Sophie Ellis actually aspirating, there's 14ml of milk and a pH of 3, so actually more acidic than we have with [Baby G] and 14ml of milk and that's at 20.00.
At 24.00, the pH 3 continues. At 24.00 we've got 20ml and a pH of 3. There we are. It's there. That's it. That's the purpose of a trial. Dr Bohin is wrong. Wrong. Yet she would not accept it in cross-examination. And the reason she wouldn't is because she didn't want to say something, we say, or give ground on something that could possibly assist the defence. It's for reasons like that, on the evidence, that we say that, yes, whilst Dr Evans quite blatantly, in our submission, is working up explanations to maintain the allegations based on the theory of guilt rather than the facts, we say Dr Bohin is quite ready to do the same sort of thing, albeit with a great deal more subtlety.
But tile 24 on the [Baby P] sequence does not in any way sit with what she was saying with what we have on the tile that we're looking at, tile 75, with [Baby G]. That was tile 24, [Baby P], ladies and gentlemen.
Go back to [Baby G]. We can take that down, please. It shows us, putting aside the comment I make upon the experts, and you'll assess that -- that's comment from the defence, you'll assess that on the evidence -- but it also shows there can be a substantial volume of undigested milk with an acid pH. So on any view when [Nurse E] came to do the feed at 2 o'clock there is no basis for saying that [Baby G]'s tummy was empty and the only thing in it at that point onwards was 45ml unless somebody forced more in. That's why this undermines that allegation. Whichever version we go with as to the basis for saying it was empty, they both fail.
But at the same time when we're looking at [Baby G] we have an issue with infection which we say is significant because you will want to wonder what condition she was in generally and the CPR for [Baby G] rose. I'll give you the figures and I'll give you the tiles but we don't need to put them all up, but I'll say it in case anyone should wish to reference this.
At 3.59 am, so an hour and a half maybe after this, an hour and three-quarters, [Baby G]'s CRP was 1; that's at tile 89. At 2.18 pm, that day, it had gone up to 28. So we're going into the realm where that is an inflammation that is consistent with an infection. By 22.53, so shortly before 11 o'clock that same day, it was up to 106. And by 9 September, referred to in her discharge letter from Arrowe Park, page 7304, it was up to 218. That is a huge CRP reading. The 1 at tile 89. The 8 is at tile 186. 106 is at tile 350. And then we had the discharge letter at page 7304 with a CRP of 218. Those are facts, ladies and gentlemen, and we say, however we try to talk about the exact start of a 48-hour period, that is a powerful coincidence, isn't it?
Really, however we look at this, the vomit started after a period of infection. When I was talking about 24 to 48 hours, Dr Bohin was quick to point out it's not absolutely precise. Well, we agree, bit of give and take. So if we go with what Dr Bohin said, this vomit coincides with the start of a period of infection or certainly high CRP readings, which is consistent with infection, and we say the facts speak for themselves. That's not a coincidence.
But over and above that, let's come back to the point of Ms Letby. That deals with the experts and what we say are the flaws in the mechanism. But what about the allegation she did something? If we look at the timings, ladies and gentlemen, and the prosecution have used the charts on the neonatal review to see if there's a possibility the timings could be made to fit so that Ms Letby could have done something she shouldn't do. It's incredibly speculative. You have heard what we have to say about the neonatal review and the extent to which you can use those documents.
[Nurse E] said feeding could take from 10 to 25 minutes, fairly approximate. Ailsa Simpson, who was the senior nurse on duty that night, added this, which you may want to keep in mind generally, that the computerised prescription entries don't establish -- do establish a precise time, that the nurse checking it can do that at a computer on the nursing station. So the point being Ailsa Simpson, who says she was at the nursing station with Lucy Letby in the period just leading up to the vomit and at the time of the vomit, could well have been there dealing with prescriptions. She says she was there. She's a prosecution witness. Let's not lose sight of actually the narrative here: I was there with Lucy Letby for minutes, some time before the vomit and then we both went.
Her evidence on 2 December, however much games are played with the timings, is that she was at the nursing station for 5 to 10 minutes with Ms Letby before hearing the vomit and the two of them went over. That leaves vanishing amounts of time between when [Nurse E] would have finished the feed and any opportunity. If a feed takes from 10 to 25 minutes, and if Ailsa Simpson's at the nursing station for 5 to 10 minutes and if the vomit is round about 2.15, any time around there, there is no opportunity for Ms Letby to have done what is alleged. That is where we get to. That's the point of all of this. There just isn't.
It doesn't really matter how we try to move things round to go to the neonatal review, say, oh look, Ailsa Simpson's doing something a bit later, maybe it all happened at 2.30. That isn't the way this went and that isn't what took place. Even the sequence of events records this at 2.15. We know this is at 2.15.
And however we try to position the time, we know on the evidence of the prosecution's witness that Ms Letby is there maybe up to 10 minutes before this happened. Okay? If we are engaged in trying to squeeze a possibility of convicting someone by looking for or creating cracks in evidence, I suppose we can always do that, we can always do that. If we're in the business of being sure, we're way away from that here.
When you look through the notes, when you look at the material with this, ladies and gentlemen, you'll see that there is a clear sequence, a feed round about 2 o'clock. [Nurse E], when asked about this, said she would have left, this is on 2 December, maybe at 2.05 or 2.10. The vomit is round about 2.15. And for 5 or 10 minutes beforehand Ms Letby was with Nurse Simpson. And whatever's done about trying to look for gaps, that is Nurse Simpson's recollection. It's a narrative, she knows what happened.
The case advanced, didn't it, as we went along because we moved then on from the mere fact of a vomit and how that happened and whether the tummy was empty to look at other aspects and other allegations made. We say we see this elsewhere. We're told that there was bleeding that [Baby G] experienced, bloodstained secretions and Dewi Evans said we've seen this before with [Baby E]. We haven't seen that before. [Baby G] is not bleeding like [Baby E] in any way.
What we have seen from evidence relating to the period before she went to the Countess of Chester was that she was prone, certainly on several occasions, to some type of bloodstained secretions. We went over that with Dr Bohin, that's clear. And therefore when we're dealing with a bloodstained secretion or fluid at the time of the first intubation, we ask you to keep in mind there's no active bleed seen, this is nothing like [Baby E], bits of blood in secretions, and no concern of any underlying problem.
Well, covering all bases, the prosecution have also gone for abdominal distension now at 6.15, not ones to leave any stone unturned. And perhaps we could put up, please, tile 107, which are Alison Ventress' notes. If we can go to page 2 to home in on what we're looking at. In fact, if we go up a little bit, could we go to the first page to assist everyone? It's my fault, sorry, ladies and gentlemen, racing to the second page. Could we go to the first page, Mr Brearey -- sorry, Mr Murphy -- just so we can be clear? Tile 107.
Alison Ventress was involved in the resuscitative efforts for [Baby G] as you know, ladies and gentlemen. I'm just going to scroll down because it's a particular timing which we're looking at. Could you go down the page, please? This sets out everything that happened. On to the next page if you could. Here we are.
Just to help you, ladies and gentlemen, we've moved on to 6.05 in the morning because there's a prolonged period that the medical staff were dealing with [Baby G] and you may remember Alison Ventress working out what the problem was because the ventilator didn't seem to be working. She actually had to change the ventilator. You may well question, goodness knows, what the effect of all this was when we consider the long-term situation. Cause isn't established from what Dr Stivaros said, but the point is there is a very long period in which [Baby G] was encountering difficulty with breathing.
We can see at 6.05 it says "profound desaturation" and if you keep moving down you'll find an entry:
"Dr Brearey called in urgently. NG aspirated as abdo appeared very large. Around 100ml aspirated."
Can you see that, it's in the centre of the page? That's what I'm looking at. The suggestion is made, well, it's a direct accusation, that that -- and this is something that's come up in the course of evidence as we've gone along: Lucy Letby, something happens, she did it, guilty. This is the mechanism.
The accusation is that that is something she did. In the middle of all this, hours of resuscitative assistance, either something residual from what happened at 2.15 or something that is alleged to have been done as this was ongoing. Realistically, is that really realistic? Well, what did Alison Ventress say? She was clear that this was -- as clear as she could be that this relates to air; okay? That's important because the allegation first of all is it's all to do with forcing milk in, but she said this on 2 December:
"At this point the NGT is aspirated."
And the question was:
"Question: It was aspirated and there was 100ml aspirated.
"Answer: Yes."
"Question: Which, to the best of your recollection, is most probably going to be air because if it was anything other than that you'd have said?
"Answer: Yes."
I asked her that and she said yes. Okay?
Now, Dr Brearey made his first appearance in the trial at this point. You weren't familiar with him. You perhaps would not have known where he slotted into everything that's happened on that unit or what a senior position he occupies and how much responsibility he must bear for what happens on his unit. You didn't perhaps have all of that in mind when he began to give his evidence. But he, when dealing with this, said he assumed it was fluid. Assumed it was fluid. We say that is extraordinary. There's no basis for that assumption. No note at the time suggests that.
We say he knows very well the significance of that and we say -- and we challenged him about saying this was fluid. We say this is opening his account in evidence before you, ladies and gentlemen, with a quick shot at Lucy Letby by supporting the excessive milk theory. That's why he just came out with fluid. It's not realistic to claim it was fluid. How on earth, for example, is 100ml of milk going to be there hours after a projectile vomit, with no distension being seen, until about 6.10? Not until then.
You can see the note is right in front of us:
"NG aspirated as abdo appeared very large."
This has been going on for hours. If the abdomen had appeared very large before then we would know. It's not something which was just held back and a note was just made. Large abdomen, aspirate. A large abdomen, it follows, round about this time. The suggestion by Dr Brearey: this could be fluid. Yeah, I bet he made that suggestion. There's no basis for it to be fluid anyway. How would that get there? And Dr Ventress saying, as far as she could think, it's air not fluid and she linked it to the breathing support which had been going on.
You can go through this note if you want, ladies and gentlemen. I asked her about it. I said:
"Question: In any event, when you noticed [Baby G]'s abdomen was large, that struck you as something that could happen by air going into the stomach rather than the lungs?
"Answer: Yes.
"Question: And that's what you thought with your clinical experience at the time?
"Answer: Yes. That was just after she'd had a period of IPPV via the face mask.
"Question: That's right, we see that."
You can see it right there, ladies and gentlemen, about six lines above it:
"Question: And the point is [I asked] it was after that period you noted that her stomach being -- her abdomen distended, didn't you?
"Answer: Yes.
"Question: Is that right?
"Answer: Yes."
Wow. If Dr Brearey's right, it didn't leave much time, did it, for Ms Letby to nip in in the middle of all this treatment and start doing things with milk, which is unsupported, or with air, which couldn't have happened. These are little glimpses sometimes. What he said, we submit, is completely inconsistent with the evidence, but they're more than that, they're little glimpses of a mindset at work here and that was opening his account, we put it, with a nudging of blame, knowing very well which way it's going when he starts talking about fluid, we submit. We challenged his about it being fluid and he was adamant.
If we move on, if we move on we'll see reference to "bloodstained fluid in oropharynx" and the evidence was that there was blood at this point. There'd been trouble getting air in and Dr Ventress had worked her way through the process, including changing the ventilator until she discovered there was a problem with a clot or blood at the end of the ETT. This clot, you can see actually if you look up there, ladies and gentlemen, just after the time 06.10, can you see:
"Thick secretions ++ in mouth. Blood clot at end of ETT"?
Can you see? This is the point when having spotted that, she took it out. [Baby G] then receives or continue -- she receives breathing support, she'd had it at other points, going on and off the ventilator. The ETT is taken out, she is given breathing support, her abdomen at that point, not before, at that point is spotted to be enlarged after the breathing support and there's a clot on the ETT. And that, if you carry on reading, was changed. You can see further down after the 100ml aspirate it says:
"Re-intubated at 06.15 with a size 3.5. Tight fit."
And we moved on from there and actually things improved then. Got to the bottom of it.
We say that speaks for itself, blood clot on the ETT explains this. That's why air isn't getting through and that's what the problem was and that would have interfered with [Baby G] receiving oxygen for quite some time given how long this process was of changing ventilators.
When giving evidence Dr Brearey, we say, did his best to say a blood clot could not have blocked the tube and interfered with airflow. He wouldn't have it. And again we suggest to you that can only be done to raise somehow suggestions or support suggestions that Ms Letby is involved in some way given what we know. Because it's extraordinary that he would not accept that a blood clot could interfere with the flow, or block it, of air. Why on earth wouldn't he? We know it can. And we say the inference to be drawn is that is an accidental error in his evidence.
In cross-examination Alison Ventress agreed that what we have here -- this had interfered with the flow of air and that once the tube with the clot had been removed, the problem was resolved. That was the evidence on 2 December from the doctor dealing with this.
Not only did Alison Ventress accept a blood clot was responsible for blocking this, or the removal of it resolved the problem, but Dr Bohin had agreed that clots like this can stop a ventilator from working when I asked her about an incident on 7 June when [Baby G] had desaturated at Arrowe Park and a clot was found on the end of the ETT. This was the additional page 4282, ladies and gentlemen. It's from when [Baby G] was at Arrowe Park. Dr Bohin said:
"She desaturated because the ventilator was unable to push gas into her lungs because of the clot or secretions, or a mixture of both, at the end of the tube. So if you're not ventilating then you will desaturate."
Some that's a very sudden thing, that's a very sudden event. That's on 13 December. That's her evidence on that.
We say a number of things follow. It appears there would have been a long period with lack of oxygen due to a clot blocking the ETT. That is contrary to maintaining a healthy condition for [Baby G], isn't it? We say that Dr Brearey's attempt to say a blood clot would not have caused the blockage, as he insisted on 12 December, is wrong. We say, more importantly, he must have known that. And we say that what we have here, looking particularly at this extract and the use the prosecution have sought to make of it, is yet again something happening as part of the clinical history with a baby, a patient, on this occasion a clot blocking the ETT, and it being taken out of context and used to prop up allegations against Ms Letby, which also takes us away, and your focus and everyone's focus away, from the failure to ventilate [Baby G] properly over a period of hours.
We will move next then to several weeks later, to 21 September, 10 am in the morning, count 8. This is the projectile vomiting in the morning. Nurse Letby made a reference to it on her notes and we've got them at tile 48 so I wonder if we can put that up please.
Can we go down to the -- I'll check I've got the right reference. This is [Baby G] sequence 2, sorry, Mr Murphy. That's my fault, sequence 2, tile 48. We're looking at the top left. Here's the note that actually this incident is based upon.
A couple of weeks later, 12.47 the note is, 21 September, by Ms Letby:
"Written for care given from 08.00."
We go through the usual figures:
"[Baby G] appears pale. Temperature 36.4. Hat in situ and well wrapped. NG tube feed (EBM) given at 9 o'clock as [Baby G] asleep and due immunisations. 10.15, x2 large projectile milky vomits. Brief self-resolving apnoea and desaturation to 35% with colour loss. Tube aspirated. 30ml undigested milk discarded. Abdomen distended. Doctors asked to review. Low temperature."
And we move on from there. All right. An allegation you can be sure of: she did this on purpose to kill [Baby G]; yes? You may think, just as a starting point, if that's right, given all that's been said about Ms Letby, what an extraordinary thing to put in your own nursing note, your attempt to murder somebody, particularly when you bear in mind a theme of this prosecution case throughout is that when Ms Letby is doing this, her preference is to get other people to deal with it. Yes? That's one of the hallmarks, do you remember? If she's not there, guilty. If she is there, guilty. If someone else deals with it, guilty. Whatever way round we are, it's guilty. Yes?
This is her putting a note in with the baby she's looking after. Where is the document fraud, the cooking of the notes that's meant to go with this and everything like that? It isn't, is it? We'll come to one issue with temperature in a little bit, but as a starting point it's strange to be so frank if trying to kill a child, particularly for someone who the prosecution say does so many other things to hide their tracks.
Dr Evans and Dr Bohin say, well, it's simple arithmetic, this is similar to 7 September. Dr Evans says air had been forced into the abdomen, Dr Bohin says: well, it's a projectile vomit and the only projectile vomits are the 7th and the 21st so these are suspect. We say this is an incredibly weak basis.
Can we move to the feeding chart, please, which is at sequence 2, tile 47? These are the feeds that morning. Both Dr Evans and Dr Bohin, when they came and gave evidence, said that this is a simple arithmetic which leads them to believe this is overfeeding. We say it's not arithmetic, it's assumption and guesswork. There's a 45ml feed at 6 am. There's a 40ml feed by Ms Letby at 9 am and 30ml is aspirated from the stomach, we've seen from the notes, after the projectile vomits.
45ml at 6 am, 40ml at 9 am and 30ml from the stomach after the vomits. And what they're saying, ladies and gentlemen, what the experts are saying is no more sophisticated than this: that seems a lot after feeding. That's what lies behind "it's a matter of simple arithmetic". It's certainly simple but there's no arithmetic to this at all. We don't know how much of the 45ml feed at 6 o'clock was still in the stomach. We don't know what quantities were in the vomit. We don't know. So please don't be drawn into thinking there's some arithmetic here that shows an assault has been committed, it's not a simple matter of arithmetic. That doesn't support this.
Dr Evans saying air in the abdominal area supports this. No assessment of the extent, just something Dr Evans has taken from the overall descriptions and worked into his evidence. I just pause here to remind you of something that Professor Arthurs said about [Baby G] and the air in her stomach because he studied a very large number of radiographs from Arrowe Park and the Countess of Chester and, ladies and gentlemen, on 3 February he said that:
"As a general point the abdominal radiographs with [Baby G] demonstrate multiple episodes of small and large bowel dilatation which were treated as presumed sepsis and settled with supportive management."
And he said:
"There are several episodes of acute abdominal distension with bowel dilation on abdominal radiographs, including at Arrowe Park."
He went on to say:
"In my opinion, it's highly unlikely that the mechanism [that's force-feeding with air or milk] accounts for all the episodes of bowel distension in two different hospitals."
In other words, if you have the same thing going on on different occasions at two different hospitals, that underlines this is probably or entirely possibly down to [Baby G]'s condition and how she is, not because of what someone is doing. He is saying this is what we find with [Baby G], whichever hospital she's in.
The suggestion, particularly from Dr Bohin, that what we have on the 7th is similar to the 21st and what we have on the 21st is similar to the 7th, so it's a pattern. Well, it's not, is it? There are obvious differences. There is no evidence of the same force or distribution. We've seen the photographs and descriptions of how dramatic it was on the 7th. That doesn't apply to this occasion. That's not similar. We can't say it's the same amount of milk, we can't quantify it.
The 21st, the one we're looking at now, was brief and there was a relatively swift recovery. The 7th was very different: [Baby G] was unwell and, whatever happened, it went on for a long time. We can't even say the vomits are the same. You can't just say what happened on the 21st is the same as what happened on the 7th, therefore they're both attacks.
Actually, again, ladies and gentlemen, on the 21st, there was some evidence of infection, although not as pronounced, and we heard from Dr Fielding who said a loose green stool was passed 10 minutes after this vomit. In cross-examination he said whether this shows she was unwell depends on the general history of the child but he noted her temperature had dropped to 36.2 about 17 hours before and her CRP on the morning of the 21st was 18 and so it's raised. It's consistent with being a little unwell.
Faced with that, what do the prosecution do when they ask Ms Letby about temperature and Ms Letby says there's a low temperature? She said that could be relevant. And we have an allegation that she had cooked the notes. Remember? Cooking the notes. So let's have a look at this piece of cooking of the notes that applies to Ms Letby to support her defence. It's at tile 46 in this sequence please Mr Murphy.
We can enlarge the lower part so we've just got the temperature in. If we look at the LLs at the bottom, it's possibly the first one, just to the right of the cursor. And if we move up, we can all follow this, ladies and gentlemen, can you see what look like two dots there on the temperature column? Yes?
The prosecution made a lot of the fact that there are two dots at the 09.00 reading, saying in some way you're inventing what you're saying about temperature. We say it's not a good point, is it, because, first of all, other nurses have done the same, twice. Just go along, left of that point. We can see multiple dots on other occasions. We can see, two columns to the left of where we are, someone's put what look like two dots in there. Go further left, four or five columns. Looks like two dots. Yes?
So if that's right, yet again, we've got Ms Letby being criticised for something that in fact others have done on the very same chart. But even more than that, if she is meant to be cooking the notes to pretend that there's low temperature, look where the dots are. How's that Ms Letby pretending this is low temperature?
If you go back, please, Mr Murphy to the column we were looking at, the 09.00 column where we started. Stay on the temperature, if you would, please, just that first column we looked at with Lucy Letby' name at the bottom of it. That's it. Look where the dots are. If we go up from the LL at the bottom to the right of the cursor there. All right. How is that cooking the books on temperature, on low temperature with this genius nurse? Yeah? It's not. It's in the white. The low temperature comes from entries when you look at it that include entries other people have put in. That's why Dr Fleming agreed with that. That's what Ms Letby is refers to amongst what she deals with later on. It's not a good point, we say respectfully, not being rude to the prosecution. I just mean, evaluating it analytically, as we are meant to, it's not something that only she has done and it doesn't even do what it is alleged to have done.
Thank you, Mr Murphy, we can take that down.
Finally on this particular allegation, Dr Bohin and her assertion that the only projectile vomits were the 7th and the 21st, which is when Ms Letby was on duty. And actually I dealt with this right at the beginning, if you recall when we were looking at the chart. I'd gone through with Dr Bohin the period after the 21st, going into October in fact, when [Baby G] demonstrates a propensity to vomit quite a lot and she made the point: yeah, but those are the only projectile vomits. She said to me when I was suggesting that [Baby G] had become someone who vomited a lot:
"I'm sorry, I don't agree with that because [Baby G] had two episodes of projectile vomiting on 21 September and she had projectile vomiting on 7 September. There were no other episodes recorded of projectile vomiting."
We know she's wrong. On 15 October, and we looked at this on the first day I was speaking to you, ladies and gentlemen, in the nursing notes of Ashleigh Hudson, it's page 7477, but we don't need to put that up, there's reference to projectile vomiting, Lucy Letby not on duty. Dr Bohin is wrong. She just said:
"Well, sorry if I made a mistake. I made a mistake."
Yes, it's that easy making accusations of people in support of an allegation of attempted murder:
"If I made a mistake, I made a mistake."
Just like that. From the prosecution's supposedly independent expert witness. There's rather a lot at stake with just making a mistake, isn't there?
One incident on that morning of 21 September, members of the jury, taken out of context being used to blame Ms Letby.
But that's not the only incident this day, is it? And this takes me to the final count where [Baby G] is concerned and that's the event some time around about 3.30 in the afternoon of 21 September. You know the one I'm going to talk about because you can picture this one a bit easier. We can imagine the scene.
What is Ms Letby meant to have done? What is the allegation? If this -- how is someone to defend themselves against something if things just move around all the time? What is the allegation, that she interfered in some way with the monitor? We know that [Baby G] was left on her own behind a screen without a monitor on. When they opened the case the prosecution said this -- this is the allegation as it began:
"On the second occasion, count 9, in the afternoon, when she was behind a screen, somebody switched off the monitor when [Baby G] collapsed."
We know who somebody is when that's said:
"Somebody switched off the monitor. Dr Gibbs didn't, [Baby G] didn't do it, and she was discovered by Lucy Letby."
There is a common theme running through all these cases, isn't there? That last bit we agree, yeah, there is, the common theme of blaming Ms Letby where other people have or may have made mistakes, that is a common theme.
Due to the frankness of [Nurse B] we now know that the doctors responsible created this situation. We do. We've had her evidence on this. It's not challenged.
John Gibbs and David Harkness. Yet again, we have clear evidence, ladies and gentlemen, in this trial of how something has gone wrong and Ms Letby is blamed. If it hadn't been for the frankness of [Nurse B] maybe we'd just be left with the usual shield wall of denials when we suggest that others may be responsible.
So what did [Nurse B] say? She had told us, didn't she, that when she heard the case opening she realised the prosecution were wrong to blame Ms Letby for switching off the monitor because there's something she had kept quiet about, but she didn't want to keep quiet about any longer. She knew what had happened, she hadn't given the detail to the police, and when she was interviewed by them in 2018, and I asked her about this, she said:
"At that point [they] would have to ask Drs Gibbs and Harkness to establish what happened."
That's how she had left it at that point. We say it's strange for her to do that and it may illustrate a problem, it may, of nurses and junior doctors not wanting to push the blame on to more senior colleagues or doctors, but to her credit, when it came to the period before giving evidence, she told us what did happen.
Let's look at this. Dr Gibbs and Dr Harkness had struggled to fit a cannula to [Baby G] that afternoon, seven attempts on this baby. We have heard a lot about how stress can lead to desaturation, haven't we, how the events can cause that to happen? Seven attempts across the couple of them.
Dr Gibbs accepted on 14 December that this could be what caused her to desaturate and the bradycardia afterwards. At that point this count is over, ladies and gentlemen, we say to you. It's a matter for you, but that's it once we have that, that their actions, albeit for a clinical purpose, could have caused this to happen. We know handling can do that.
They are both in a hurry, we know why that is, and they rush off -- I'm going to come to [Nurse B]'s evidence -- without telling her, without telling anyone, leaving [Baby G] on her own behind a screen, and leaving the monitor off. That is the evidence and the reasonable conclusions to draw from the evidence. That's what happened, that's what the doctors didn't do, which is why they had to go back and apologise to [Nurse B] that afternoon for leaving without telling her or anyone, for leaving [Baby G] on her own behind a screen, and leaving the monitor off.
She is crystal clear about that. Dr Gibbs was direct on that point. He said:
"If that is what [Nurse B] says, then that is what happened."
So it's no good the prosecution, or anyone, shuffling away from that. She's a witness who's been relied upon in detail throughout and on this her evidence is crystal clear.
We saw how Dr Gibbs dealt with it and accepted what [Nurse B] says. Dr Harkness, what a display that was. Going through what she had said, he just kept saying, "I don't remember I don't remember I don't remember". Maybe he doesn't. Maybe he doesn't remember, ladies and gentlemen. Maybe rushing off and leaving babies behind screens who desaturate without the monitor attached and having to go back and apologise to a nurse is something he doesn't remember. That's one option. Or he did and he doesn't want to say. But neither, you may think, is particularly impressive. He didn't deny it, did he? We have heard what the prosecution say about witnesses who don't deny things, but he certainly didn't want to admit it. Very poor treatment leaving a baby like that after that treatment to desaturate without the monitors on or when she desaturates without the monitors on. I'm not suggesting that they knew that would happen.
A high-risk baby with a difficult cannula fitting and after that they apologised, on the evidence of [Nurse B], which can't, we say, seriously be challenged and isn't. But the point, of course, to borrow from what you heard last week, is you know what I'm going to say, who gets the blame? Who's being charged with attempted murder for this?
Let's turn, ladies and gentlemen, to counts 10 and 11. [Baby H]. [Baby H] was born on 22 September 2015 at 18.22. 34 weeks and 4 days, 2.33 kilograms.
Key events. Not all of them, but key ones are as follows. She didn't receive surfactant until 11.30 on 24 September, so about 41 hours after birth, I think. Yes. A long delay.
By that time chest drain 1 had been inserted and that was inserted by Dr Harkness on 24 September at 10 am, so actually just in advance of that surfactant. A case perhaps of coming too late, wasn't it, because a chest drain had gone in by that point? That was on the morning of 24 September.
Chest drain number 2 is inserted at 3 o'clock in the morning of 25 September, inserted by Dr Ravi Jayaram. Chest drain number 3 was inserted, almost 24 hours later, at 2.15 on the morning of 26 September by Dr John Gibbs. An hour and 7 minutes after the third chest drain was put in, at 3.22 on 26 September [Baby H] experienced a profound desaturation down to 30%. That's count 10. Then the following morning, 00.55, on 27 September, desaturation into the 40s, and that's count 11.
Dewi Evans, in terms of what is the medical explanation for this, it is unexplained, he says. Sandie Bohin, unexplained, although harm is, of course, proposed of some sort, but no medical explanation given.
We have an explanation, don't we, ladies and gentlemen? The defence certainly do. It's a matter for you whether you agree. They were under no burden to prove anything. But we say this is a case where the evidence reveals serial sub-optimal care. Those failings and shortcomings are, we say, clearly linked to problems experienced by [Baby H]. There is no evidence of Ms Letby doing anything wrong at all, but she gets the blame for what happened.
Sub-optimal care. Dr Evans absolutely would not have that there was sub-optimal care. Dr Bohin was more frank, although perhaps sometimes a little slow to be as frank in evidence as she was in her reports, but we were able to take her to them and then we got to frankness. We did have to go to the reports from time to time. But there was significant, we say, sub-optimal care in [Baby H]'s case, both -- in six individual areas but then, when you total this up -- I'll go through it now. About five areas, actually.
First of all -- first -- there was the late delivery of surfactant up to 36 hours post-birth. Late delivery. Dr Bohin agreed that appropriately timed surfactant -- appropriately timed surfactant can reduce the risk of pneumothorax. We know [Baby H] had to have three chest drains eventually. Dr Bohin went on to agree that late provision of surfactant will have made the initial pneumothorax worse. She said that on 24 January.
So we can see, ladies and gentlemen, right away, that sub-optimal care has had a damaging consequence given what happened with the pneumothoraces or the first pneumothorax.
One, late delivery of surfactant up to 36 hours post-birth. Way too late. It should never have been missed.
Second, she accepted, again on 24 January, unacceptable -- page 70 -- unacceptable delay in intubating on the morning of 24 September. That's what she said in her report. In evidence she was a little slow to accept her own opinion but she did eventually say it was a delay.
Third, a butterfly needle inserted after the deterioration whilst on the ventilator at 10.05 on 24 September was left there. You saw that needle coming into [Baby H]'s chest. She agreed, Dr Bohin did, that this is a needle with a sharp tip that can tear delicate lung tissue and it was still there about an hour and 20 minutes later. In her report she had that leaving needles -- I'm quoting from it because this was put to her in evidence. We did hear this. She said that leaving the needle in the chest is dangerous, and she accepted that in her evidence before you, and that this could have contributed to subsequent pneumothoraces. Dr Bohin agreed this was sub-optimal practice because it's hazardous.
Four, as we go into the evening of 24 September, so this is the evening after the first chest drain had been fitted in the morning by Dr Harkness, [Baby H] continued to experience desaturations and she was struggling against the ventilator. Nothing to do with Nurse Letby. The opinion of Dr Bohin was that it would have helped if [Baby H] had been sedated. I'm not suggesting in itself in any way that is sub-optimal, it's just something else, isn't it, it just keeps coming?
Dr Jayaram attended at about 1.50 am on 25 September and some time passed before he inserted chest drain 2, even though he inserted needles on a couple of occasions first. The opinion of Dr Bohin was that it would have been better to proceed to inserting the second chest drain sooner than actually happened; it should have been done straight after the needle had been inserted.
Now, across those five issues there's a range of how bad it is. Not giving surfactant for 36 hours or thereabouts is bad. We all know that now from this case. That's a huge delay.
Leaving the butterfly needle -- sorry, it's a delay which Dr Bohin linked to damaging consequences, given what happened with the pneumothoraces, so there's a clear link there.
Leaving the butterfly needle inserted is hazardous because it can tear lung tissue and her view in her report was that that could have contributed to subsequent pneumothoraces. Those are bad.
Other matters. The delay in intubating on the 24th was unacceptable. Failure to sedate on its own probably would be unremarkable, but it just adds to the picture. And then delaying with the insertion of the second chest drain again was not the optimal way of proceeding with Dr Jayaram. But we already have undoubted sub-optimal care, taking us up to the period where the allegations then start against Ms Letby.
I said six areas, then said five areas. Of course, the sixth area is what happened to the fitting of that second chest drain and what happened once it was fitted. Do you remember the issues about where it went in, how it moved around, how it wasn't secured properly? That's hotly contested by Dr Jayaram and the prosecution, so we'll look at that evidence. But before we get to that, ladies and gentlemen, we have a catalogue of sub-optimal practice that made [Baby H]'s position sequentially worse with her desaturation repeatedly and her treatment not being the standard it should have been. And it's that positioning of the second chest drain and the failure to secure it adequately that we say takes the sub-optimal up to six or even seven items on the evidence. It makes it unrealistic and unfair, really, putting the emphasis on the fact that [Baby H] improved at Arrowe Park after she was moved there. Not surprising, is it, a tertiary centre like that? Of course she improved there. And that list about babies that improve when they leave the Countess of Chester. There's a very good many reasons why, and we say they are not to do with Ms Letby, and this is a clear example of how things could only have got better once she was removed from the Countess of Chester.
I'm going to start, if I may, before we break, ladies and gentlemen, just to identify what we'll deal with. This is event 1 at 3.20 am on 26 September 2015. Just to remind you, this is the first event. This happens about an hour and a number of minutes after the third chest drain had been fitted. You can imagine what the strain of that must have been on this little baby.
No cause is identified by the experts, although the prosecution -- the prosecution, not the experts, have sought to make use of what [Baby H]'s father said in his statement to the police in May 2020, if you remember, about mottling running out of skin towards her fingertips. That was read to you in January. They've taken that and endeavoured to put this under their list of discolouration. It doesn't match any description of air embolus, whatever her fingers were doing, and you know that if it possibly could, there's two people who would have been the first people to get there and tell you about it -- yeah? -- or suggest it. One of them is called Dr Evans and the other is called Dr Bohin.
They would have seized on that enthusiastically, and not undermining the seriousness of the incident that [Baby H] was involved in, there is nothing remarkable about that discolouration from any other witness recorded at that time. That has been an absolute non-issue in this case until the prosecution just spot something in a witness statement that was read about colour. Bang, in the list, "that's discolouration". There's loads of discolouration on the unit. It's an utterly irrelevant one. That's why it's important to look at those lists with a great deal of caution, ladies and gentlemen.
Perhaps before I go into any further detail there, that might be an appropriate point to stop.
MR JUSTICE GOSS: Certainly. Right, we'll break off for lunch. Could you be ready to start at no later than 2.05? That's just an hour and 5 minutes.
(1.00 pm)
(The short adjournment)
(2.04 pm)
MR MYERS: Ladies and gentlemen, it occurred to me as I was about halfway through my sandwich that we're about halfway through the period in which I plan to deal with the submissions on behalf of Ms Letby and it's concentrated material and it's hard to concentrate on and we, and everyone in court, are grateful to you for focusing upon it. It's hard and the detail keeps accumulating as we go along, I appreciate that.
But it is necessary to look at the detail because it matters, actually, particularly where so much is based upon circumstantial evidence and supposed, alleged similarities and generalities, but we do appreciate it and I hope you understand why it is necessary to look at the detail this way. We are grateful to you for focusing upon it. It's concentrated and it can be very hot, at least I find it very hot. So we'll see how we get on.
We were looking at the first of the [Baby H] events and that's at 3.20 on the morning of 26 February 2015. No cause proposed by the experts, and of course we don't have to find an explanation, but we do suggest, on all the factors which we have with [Baby H], that by this time there was a build-up of so much that had happened to her and, we also say, possibly the effect of a badly placed chest drain, which was the second one, that this may well have contributed to the collapse that she had. There must be, we say, a cumulative impact on [Baby H] for everything that's happened.
You'll recall at least one, if not more, of the nurses saying something even like a nappy change or a heel prick or just handling can cause one of the babies to desaturate. Well, goodness, [Baby H] had been through an awful lot more than that by the time we come towards 3.15 on 26 September. She had just had a third chest drain -- just, about an hour beforehand -- a third chest drain inserted. That is very unusual. It must be a huge stress on a baby.
When Alison Ventress gave evidence on 19 January, I did ask her about this and I began by saying to her:
"In fact, if we look at the days leading up to the event at about 3.20 on 26 September, there's a good deal more than just suction, nappy change and blood tests that have happened, isn't there?"
And she agreed and we went through it. There had been multiple desaturations -- this is a period not involving any allegation against Ms Letby -- multiple desaturations, including in the hours leading up to this event, some of them profound, suffering for prolonged periods of time with pneumothorax or tension pneumothorax. She'd had three chest drains inserted and Dr Ventress agreed that one would be quite an event for a baby; three would put a lot of pressure on a baby. The third one went in little more than an hour before this happened and, of course, butterfly needles on various occasions.
And this is where we got to in conclusion with Dr Ventress. I asked her:
"Question: So although we have no trigger identified at the note -- we understand why you put that there --
"Answer: Yes.
"Question: -- the reality is she had been through an awful lot of medical activity, hadn't she?
"Answer: Yes.
"Question: And it is quite conceivable that a baby under that much intervention, having gone through what she had gone through, could suffer quite a significant collapse?
"Answer: Yes.
"Question: So cumulatively, over 3 days, it could be said that that did contribute to what happened?
"Answer: Yes. And babies do desaturate for reasons that we don't identify."
So that's just the cumulative effect of everything.
Then we come to consider the effect or possible effect of the second chest drain, the Dr Jayaram chest drain. We say this is another aspect of care, of poor care, and it may well be significant, remembering there's no burden on the defence to explain.
In closing their case, the prosecution apologised to you, really, on our behalf for the time spent asking questions about the chest drain. Do you remember? They said it was unfortunate, unfortunate, that we had to have time questioning about the position of the chest drains before we got to the evidence of Owen Arthurs because he saw no problem with the position. Do you remember that's the way our case on this was dismissed before you'd actually heard nit explained to you?
We say the prosecution are wrong to take such a dismissive approach to actually matters of evidence -- we've had a lot of evidence on this -- and we say they are wrong because there is evidence that there were problems with chest drain number 2 and we say they are wrong about what Professor Arthurs actually said if we look at all of his evidence. We'll remind you of some of the other things that he said.
Before we do that, can I just look at what we learned about where a chest drain should go. We know now, we didn't beforehand, a chest drain should go in what's called the fifth intercostal space. You count down the ribs and there it is. I can't count on mine, but there it is, that's the fifth intercostal space. That's why, in their notes, Drs Harkness, Jayaram and Gibbs made reference to that, although you may recall Dr Jayaram got that wrong because he put it through the eighth one. That's the point.
Dr Bohin was clear that the fifth is the right place and it is put in the fifth to avoid other structures inside the chest where there could be a problem if the chest drain makes contact, and that includes the heart and the vagus nerve. And there can be a danger of bradycardia or desaturation if it comes into contact with either. I'll remind you of the piece of evidence relating to that shortly.
But Dr Jayaram didn't put it in the eighth -- sorry, didn't put it in the fifth, he put it in the eighth and that's wrong. We can see the right place, ladies and gentlemen, if we look at the chest drain inserted by Dr Harkness around 10 am on the 24th. That's at radiograph 12658, please, Mr Murphy.
We can see that butterfly needle sticking in there at the top, the bright light at the top. I think I'm right about that, I'll be corrected if I am not. In any event what I'm asking you to look at is the pigtail drain that we can see -- thank you. That's at or around the fifth intercostal space.
We can see where Dr Jayaram put his at tile 75. This is at 4.37 on the 25th. All right? Here we are, tile 75. There it goes. Spot the difference. The guidelines are clear. Dr Bohin accepted that Dr Jayaram's placement of the chest drain was not in accordance with the guidelines. There's two issues with Dr Jayaram's chest drain. One is where it has gone in, which is round about the eighth intercostal space, and the other is, perhaps in connection, where the tip ends up in the course of all this. You can see where it is right now.
In any event, Dr Bohin accepted that the placement was not in accordance with the guidelines, and even though we say she did seem to make some excuses by saying there was already a drain in that position, therefore justifying what Dr Jayaram had done, she had to backtrack and agree with me when I pointed out that if we look at what Dr Gibbs did when he put the third chest drain in, that didn't seem to be a problem. Can we just look at tile 229 before we come back to tile 75, just jump across to 229, if we could, because this is where Dr Gibbs put his drain at 2.30 on the 26th. There we are. So no need to put it as low down as Dr Jayaram did. You can see the third drain. This is the one that Dr Gibbs had put in.
If you want to check the time -- could we scroll down, Mr Murphy, so we can be reassured as to the time. We can see it at the top, actually. There we are: 26 September, 2.30. And that was when the third drain had gone in. And as we are looking at that, look how the Jayaram drain has moved now, tickling its way or moving on its way, whatever it's doing, inside the cavity there in a way the others don't. All right, thank you.
If we go back to tile 75, please. This is the Jayaram one. Dr Bohin went on to accept that the tip of the chest drain here is not in an optimal position. And on 24 January she was asked about this and agreed it may come into contact with structures like the heart or the vagal nerve and it was sub-optimal and we say that is bad.
But it wasn't just put in the wrong place, it wasn't secured properly. It moves about, ladies and gentlemen. It may be because of how the baby moves or how the baby is handled or maybe because it isn't secured. But if you want to see how it moves, and we watch it, I'm going to go through a series of these radiographs with you -- by all means feel free to make a note, but you may have this already, but I'll give you the reference and the time and the date. So we're going to start here. T75, which is 4.37 on the 25th. 25 September.
Next, 14.53 on the 25th. So tile 137, which is 14.53, 10 hours later. That's where it is there. T137 next. There we are. Can you see? If we could see, Mr Murphy, the timings as we go there, just so we can all be reassured and I can check we've got the right one. Can you see at the bottom, ladies and gentlemen, 25 September, 14.53? You can see how the Jayaram drain has now moved up inside the chest cavity.
Next could we go to tile 12670, which is at 17.25. Sorry, page 12670. It may also be at tile 158, Mr Murphy. There we are. 17.25. Difficult to see, but we can see where it is, but it appears to have moved in some way. It's not sticking in as it was.
If we move forwards to 22.56 that evening, a little before 11 o'clock, we can go to tile 200. It's gone back down again. Can you see that, moving around? The other one isn't moving.
We go next, please, to 2.30 on the 26th at the time Dr Gibbs had fitted his and this is tile 229. Back up again. Then we move forwards a bit to 19.17 the following evening on the 26th. Just carry on, please, the following evening at tile 381. A slight movement across there away --
(2.16 pm)
(No audio feed from court)
(2.17 pm)
MR MYERS: -- they are not moving like that.
Now Professor Arthurs -- and you can see how close that comes to the midline where the heart -- not on this one, but on other ones -- where the heart and the vagus nerve are.
What Professor Arthurs said, bearing in mind the prosecution apologised and said it was unfortunate we questioned him about this, we say his evidence makes little difference to what we have here. In general on this topic -- and we can take this down for a moment, please, Mr Murphy -- in general on this topic it is important, isn't it, to keep in mind how expert evidence applies to the expertise -- the quality applies to the expertise of the expert on that topic and Owen Arthurs on 3 February had said in his report -- he acknowledged he said in his report written before the trial:
"Whether a drain can cause clinical complications, such as episodes of desaturation or bradycardia, is outside my area of expertise and I defer to the neonatologist experts regarding whether [Baby H] suffered more or fewer than expected of those episodes than any other baby".
So first of all, he's not an expert on the effect of the position on the chest drain and he defers to the neonatologists. The view of the expert neonatologists or paediatrician in the case of Dr Evans was set out in the joint report, accepted in evidence by Dr Evans and Sandie Bohin, and it was confirmed, I think by Dr Bohin, that they'd said the apparent mobility of the chest drain tip may have resulted in complications, including episodes of desaturation and bradycardia.
That's in general. Put in brackets the fact that when asked about this, Dr Bohin said, "Ah yeah, but not on this occasion, to be fair". That's what she said. It doesn't mean we're saying she was being fair but, so you have it, that's what she said, that:
"It can result in complications, including desaturation/bradycardia."
But she qualified that by saying "but not here". But on this point, and with regard to tile 229, please, Mr Murphy, tile 229, which is the position as it was put in by Dr Gibbs -- sorry, the position after Dr Gibbs had put in the third drain and we can see where the thin Dr Jayaram drain is at this point.
On this one, 3 February, Professor Arthurs was asked about this and I asked him:
"Question: When you were asked about this image, Professor Arthurs, what you said about it was, 'It looks like it's touching the heart', about the second chest drain.
"Answer: Yes.
"Question: 'It may be several centimetres away.'.
It follows from that that it may be several centimetres away, it may not be several centimetres away; do you agree?
"Answer: Yes.
"Question: This can't tell us precisely how close it is to the surface of the heart or whether it's actually touching?
"Answer: Yes."
So it can't tell us, it could be several centimetres away, it may not be, it follows it could even be touching, ladies and gentlemen, so I suppose in that sense the prosecution were right to say our questioning was unfortunate, insofar as it's unfortunate for them. But that, you may think, is an important part of Professor Arthurs' evidence. And it's not right to seek to dismiss it as if we have wasted everybody's time by dealing with it when we look at it in its entirety.
If you want an opinion outside the hospital, and outside the experts in this case, we can see what Dr Soni was told by the doctor from Arrowe Park Hospital on the morning of the 26th around 11 am. Could you put up, please, tile 341 please, Mr Murphy. Tile 341.
It's the second point. From Dr Soni, the note by Dr Soni, 11.54, 26 September 2015, speaking to...
"Discussed with Dr Rath, consultant neonatologist at Arrowe Park."
Looking at her condition. But look at the -- if we come down to the second point, please:
"Possible cause for cardiac arrest..."
So this is after event 1 with [Baby H]:
"Possible cause for cardiac arrest could be that a drain is too close to the heart and touching pericardium. Can pull drain out if too far in. Shouldn't be close to midline."
Okay? There it is. Evidence from someone else.
It moves. It's around the area of the midline. That can create problems. You saw the photograph that shows its position barely an hour before this episode.
We can take that down, thank you, Mr Murphy.
That's dealing with its movement inside the chest, but the question also -- we say this is a very badly fitted drain, and we say that on the basis of the evidence, but it wasn't just moving on the inside. We suggest it wasn't in the right place, it moved in the chest in a way that could trigger a brady or a desaturation, and it wasn't secured properly so that's a third problem.
We know it wasn't secured properly because Dr Gibbs had to secure this at 17.45 on the 25th. So it had been fitted late at night and some time during the following day it was secured. We see that in the notes from [Nurse D] and I'd like us to look at those, please, ladies and gentlemen. They're at tile 144. I wonder if we could go to that.
We start here -- we may need to go over the page. Just below that, it's the bottom one, please, thank you. All right. So this is an addendum put in at 20.31, so at the end of her shift, but you can see it deals with events in the afternoon:
"Went up to Cestrian to update mum at 16.00 whilst Dr Harkness carried out [and can we move on, please] a head scan."
Just when you look at this, I would like you to keep in mind what's gone on with the drain and what would be said if Lucy Letby had been on duty and done this note, just what would be made of this. She's nowhere near at this point:
"At 16.21 [Baby H]..."
So she's just left [Baby H], a couple of minutes, 20 minutes before:
"At 16.21 [Baby H] started to desaturate. No air entry heard. ET tube suctioned. Help summoned from colleague. Crash call placed for paediatricians. No secretions obtained on suction. [Baby H] bagged with Neopuff. No colour change on capnograph. Still no air entry so ET tube removed. Doctors arrived. [Baby H] being bagged with Neopuff, spontaneously breathing, 30% oxygen with saturations 100%."
That's quite an incident isn't it? She's re-intubated. We carry on down the page. Just about halfway down, can you see -- halfway down towards the end of one of the lines it says:
"Second chest drain noted to be in a different position and 'holes'..."
And "holes" is in quotes, eight or nine lines up from the bottom:
"Second chest drain noted to be a different position and 'holes' close to chest wall. Further Tegaderm applied and chest drain tubing position altered. Both chest drains bubbling ++ during re-intubation but only occasional movement since. Dr Gibbs used cold light to chest wall as he thought there was a slight re-accumulation. No signs with cold light."
And we know in fact that at this point and after this Dr Gibbs then went on to secure that chest drain because it wasn't secure.
A number of matters from that, just pausing there, as a snapshot of what has gone on 9 or 10 hours before the third drain goes in and [Baby H] desaturates.
First of all, this is unexpected, isn't it? We've heard a lot about how unexpected events indicate someone attacking a child, that's one of the links. Well, this must have been unexpected because she went off and left [Baby H] and this happened. When we come to the chest drain, it's leaking through a hole in the chest, and it was enough in fact to wet and stain the bed, and it had been moving and it was fixed by Dr Gibbs.
Now we've seen how -- where Dr Ventress later that evening had to reposition a chest drain and in passing the prosecution just suddenly put it out there: you interfered with that, you've done that. But this drain was not well secured. Even after this it moved and we have it moving here and this can't be blamed on Ms Letby.
If we carry on, just to the handover:
"Handed over to night staff."
Last line:
"Desaturation at 19.00 to 56%."
This isn't anything that can be blamed on, at this point, Ms Letby. We have a handover and we have a desaturation to 56%. Precisely -- this should be in one of those lists you've been given except it won't fit in there because it goes with [Nurse D], doesn't? It's something there happening at handover and later on we have allegations being put to Ms Letby that she is sabotaging when it comes to her, sabotaging when Dr Ventress had to reposition the drain again later that evening. All connected, we say, with Dr Jayaram's badly fitting and badly positioned chest drain on the evidence, ladies and gentlemen. And all features here which relate or are similar to events later on.
Now, again, pieces of evidence the prosecution have used to try to support this event. The parents had just left, they tell us, with the [Baby H] event. We're coming to Ms Letby. The prosecution have endeavoured to use what [Father of Baby H] said to the police in his statement in May 2020 that was read to you on 18 January.
[Father of Baby H]'s evidence was that he and [Baby H]'s mother had been there until about midnight when they left. Pause a minute. The event with [Baby H] happens hours later, 3.20 in the morning, after a third chest drain has been fitted. So the key event we're dealing with doesn't happen just after the parents have left. And if there is a suggestion that what Alison Ventress was dealing with is what that relates to, could I just put up tile 210, please.
This is the notes from Dr Ventress, just if we look at that, where she had to adjust the second chest drain. These notes were made at 23.50, which means what you see there is being dealt with up to that time when she then makes the record. These problems therefore happen before midnight, as it happens, which certainly, on the agreed evidence, of [Father of Baby H] would be before the parents had left. It becomes terribly approximate, but it's just something which is thrown out there in passing and, however we look at it, it's unrelated, we say, to what happens at the time of the event we're actually looking at.
So we can take that down Mr Murphy, but what we have, ladies and gentlemen, on the evidence -- on the evidence and you've just been through this review patiently with me for pour which I'm grateful -- but we have evidence of serial sub-optimal care and you'll recall Dr Bohin agreed the positioning of that chest drain ultimately was not optimal.
From the point that surfactant was unjustifiably delayed, or improperly delayed, right up to the failure to insert the second chest drain properly, all of which is perfectly capable of having a very adverse effect. And there's a lot of evidence of that and, put in the balance, what evidence is there of actually Ms Letby doing a single thing wrong during all of that? What is there?
We come to the second event with [Baby H], which is the following night, 27 September at 00.55. We say, again, Ms Letby has no involvement and no opportunity really to be involved in this.
There was a lot of involvement with [Baby H] on the night that we've just looked at, the 25th into the 26th, but that's because she was [Baby H]'s designated nurse, so that's hardly surprising. It's very different picture actually on the second event that's alleged against her, the 26th into the 27th. Could we put up the plan, please, for that evening which is at page 2, thank you, of the neonatal review? So on this evening, the second event, [Baby H] is in nursery 1, designated with Shelley Tomlins. And nursery 2 is where Lucy Letby was based. Obviously nurses, all of them, can move about as required but that's where she was based.
The notes of Shelley Tomlins identify a series of events but can we just start by seeing the last time that we have involvement with [Baby H] by Ms Letby. That's at page 3, line 82. This is the last time we have the blue and yellow together. This is at 22.38. Keep that in mind, 22.38, so some time before the actual alleged event. Thank you.
The event itself is described by Nurse Tomlins in her notes at tiles 436 and 442. I won't go there in fact, but it would appear [Baby H] was with her -- in fact, let's have a look because this may be important given what's been said. Could we go to tile 436, please?
We have a number of events, in fact, that evening. If we just start at the top we've got a note here made at 22.53. Just looking into the first part of that note, ladies and gentlemen, the first paragraph, you can see it says:
"Around 20.30 [Baby H] had profound desat and brady."
Do you see that? I'm going to remind you the event which is blamed on Ms Letby is at 00.55. But at 20.30 we have profound desat and bradycardia, nothing to do -- nothing alleged to Ms Letby (sic).
If we move on 21.45 in the next entry:
"Desaturation to 40% despite good air and positive entry."
There we are, thank you. Again nothing alleged there against Ms Letby.
On to 00.55, you can see just this at the bottom of this note:
"00.55. Profound desat."
This one is blamed on Ms Letby, we say randomly, although it may be the worst of them all, that's why.
We carry on I think to page 442, tile 442 to carry on with the note, please, thank you. You'll notice it doesn't appear that Miss Tomlin was anywhere other than, from the notes, with [Baby H].
Next:
"03.30. Profound desaturation to 60s."
This isn't part of the case against Ms Letby. It just goes on and on.
So there's a series of them -- thank you, Mr Murphy -- a series of them throughout that evening. We say what happens at 00.55 is plainly part of the course of [Baby H]'s condition. The evidence of Ms Letby being there is very thin and I'm going to come to Matthew Neame because that's really where we seem to get to on this. That's the evidence there of what happened.
Shelley Tomlins appears to have been there on these occasions, so how Ms Letby's meant to have gone in and done anything is difficult to see.
Matthew Neame made two notes for attendances and they were timed 21.15 and 01.30. Ms Letby was asked about this in examination, cross-examination. The prosecution pointed to evidence by Matthew Neame where he'd said that Ms Letby had been present on both times he had gone there and that he had spoken to her. But, as ever, it is important to look at the full picture and the full extent of the evidence. I asked him about that on 23 January. And he said a number of things that he hadn't said originally.
He said he recalled a number of nurses being present on the second occasion, so this is the -- when he attended at 01.30, which is the time of the -- or about the time of the key event. A number of nurses being present on the second occasion but not the first. He had also told the police in his statement in July 2019 that Ailsa Simpson was there on the second occasion. He was wrong about that, but the point is I brought that out to demonstrate how wrong people can be. He told the police Ailsa Simpson was on duty, she wasn't.
In his statement to the police he never mentioned Shelley Tomlins being there at all, although he knew her and we know she was there throughout, so he put one nurse there who wasn't there, didn't make reference to the designated nurse who was. And he went on to accept that on his first attendance it could have been Shelley Tomlins who told him what had happened, not Lucy Letby.
When Ms Letby was cross-examined about this, what was put to her, and to you listening, was that Matthew Neame said it was her he had spoken to and that is where he began. But when he was questioned later he agreed he put Ailsa Simpson there when she wasn't there, he couldn't remember Shelley Tomlins, though he did know her, but he agreed it could have been Shelley Tomlins who told him what had happened. Doesn't sound like he was really that clear when it came down to the identity of who was doing what.
And on such small things and such fragile recollections, charges of attempted murder, like this one, rest. In the absence of any other evidence showing involvement by Ms Letby and with a baby who had been subjected to the care that [Baby H] had and was already that evening going through a series of desaturations. No cause identified, members of the jury, no mechanism of harm on any of these occasions, multiple failings in care, and no evidence, we say, that comes close to putting Ms Letby in a position of doing anything wrong.
And really, as I said right at the beginning of this, what the submissions are that we make measure them against the evidence. You look for where the evidence is that compellingly shows you, so you can be sure, that she caused the problems for [Baby H].
And whilst we don't have to prove anything, our submission to you is the evidence demonstrates quite the opposite and that there were very serious failings in care, serial sub-optimal care. That will have destabilised her very badly. And Ms Letby? Nothing.
Ladies and gentlemen, we move now, come now to count 12. And as you know this is a lot of material here. Okay? Count 12 is the allegation in the case of [Baby I], but an allegation that has rolled up within it multiple allegations over quite a period of time. And, as I have done, I will go through these and try to go to the key point that we've been dealing with and what we say about them to assist you.
[Baby I] was born at Liverpool Women's Hospital on 7 August 2015 at 20.47. She was 27 weeks' gestation, so extremely premature, 970 grams in weight. And she remained there until 18 August when she was transferred to the Countess of Chester Hospital.
What I'll do is, rather than simply going through and summarising the events, we'll look at the summary of each one as we come to it so we can keep focussed as we go along.
But some preliminary points about [Baby I], ladies and gentlemen. [Baby I] was very small and she was a fairly fragile neonate throughout her life. Very preterm, very poorly. Capable, it seems, of deteriorating from almost nothing. And I say that because we have, for example, the evidence from Nicola Simmons, a nurse from Liverpool Women's Hospital, who dealt with [Baby I] on 6 September after her transfer there. This was read to you.
I pick this because this is something describing [Baby I] before any point that anything is being alleged about Ms Letby. If I pick something that said how much trouble she was having in the middle of the episodes we're looking at, no doubt it could be said, "That's what's being done to her". So this is before then.
She said:
"[Baby I] had a profound bradycardia upon positioning. This in itself is not uncommon for a small sick baby upon repositioning. For a tiny baby like [Baby I], just moving her from one incubator to another, as we had to, may have triggered a desaturation and a bradycardia. The movement upset could have been created by as little as moving her arm so we can get access for a line insertion."
Okay? So let's get real. We're dealing with an incredibly fragile neonate. We're dealing with somebody, a baby, who was very unstable. She required an enormous amount of support.
We went through and have looked at and considered various aspects of her. She had regular desaturations, some very serious, and needing a significant degree of support. One feature of [Baby I] was she had regular abdominal distension, which was marked, and it could persist even after treatment and support. I don't expect you, ladies and gentlemen, to be able to remember the massive number of statements that have been read to you in the course of this case, but when we were dealing with [Baby I], we had a lot of statements read as well as evidence given, and so many people spoke, the nurses spoke about [Baby I] always having a big tummy, a tummy that would distend, numerous investigations. That includes statements, ladies and gentlemen, from [Nurse C], [Nurse A], David Harkness, Laura Eagles, who said [Baby I] always had a big tummy, Shelley Tomlins, Chris Booth, who spoke of numerous investigations into a distended abdomen.
And Sandie Bohin agreed that throughout [Baby I]'s notes there were problems that were consistent and which recurred, including desaturations, abdominal distension on a variety of occasions and mottling.
She was regularly described with veins over her abdomen, in particular sometimes over her body. And these things matter if we're trying to find a stable starting point to start judging or assessing events where Ms Letby is said to have done things that reveal themselves in the way [Baby I] presents. But outside those allegations, this is how she could present: she regularly required breathing support and she's often described in the statements, ladies and gentlemen, as mottled.
The statement of Shelley Tomlins. There's a description:
"Like corned beef, purplish-white, blotchy. Some babies look like that all the time and for some it can be a sign they are unwell. "
Gosh. Imagine that being given as a description for one of the events Ms Letby is blamed for, or even imagine Ms Letby being on duty when that's a description that's given, then she would be blamed for it, wouldn't she, we suggest.
There were regular concerns about NEC and infection and breathing problems, so really serious problems. And all of that, ladies and gentlemen, is combined with and, we say, associated with a continual and worsening failure to gain weight, something that Dr Bohin largely regarded as irrelevant to what we were dealing with, but when we went through this with Dr Elizabeth Newby on 1 February, we saw that [Baby I] started her life somewhere around the 50th centile, which is acceptable, in the middle of where everyone is. By 25 August, so before any allegations, she'd dropped to somewhere between the 9th and the 25th. And by the 22nd she was down to the 9th. And by 20 October, she was on the point 4 centile, which is the lowest there is.
We say her ability to withstand problems that she could have experienced quite naturally as a cause of her condition would have reduced and reduced over time.
All right. Let's have a look at some of the dates that arise.
The first date, ladies and gentlemen, we go to is 23 August. It's not one of the dates of the events, but you're probably familiar with the significance of this now. It's not in your sequence of events, but it's an event where there was abdominal distension identified, and identified by the experts in this case, Drs Evans, Bohin and Marnerides, to such a degree that they identify it as a harm or an event that is consistent with harm. Okay? This is one of those events like [Baby C] on 12 June.
In other words, we say, you can be very confident that if Ms Letby had been on duty on that day she would be facing trial on this along with the other charges but she isn't on duty then, so she isn't being prosecuted for it.
A harm event according to the experts -- and this is right from the start of the events we're looking at and it tells us three things. It tells us, first of all, how readily the experts will claim events are suspect, and to some extent that's what they're here for, they're to look for it (sic), I suppose to that extent it's very important they're there doing it, but they're certainly ready to identify them even where they're not.
It shows that events that are put before you rely heavily upon the presence of Ms Letby. Otherwise why isn't this there? But also, and importantly, it shows -- and please keep this in mind, ladies and gentlemen -- this is something that happened on 23 August, which is actually a sad, but natural, part of [Baby I]'s condition if we work on the basis there isn't really harm that was done here, the experts have got that wrong. This means, this level of distension, and this level of concern, is actually a natural part of her condition.
So all the time when we go on to people alleging air down the NGT or other dates on the basis of abdominal distension, we have hard proof the experts can be completely wrong about that and you should have little confidence in it.
Not everyone is going to want to hear that, ladies and gentlemen. Okay? Not everyone's going to react to that in the same way. You decide that. But if you're looking for a guide as to whether you can rely on the experts' ability to safely identify where harm was done from the state of [Baby I]'s abdomen, they can't. They got it wrong. And if Ms Letby had been a duty this would be something else to deal with but it isn't because she wasn't.
Dr Marnerides, when questioned about this on 30 March by me, agreed that having identified 23 August as a harm event and where air forced into [Baby I]'s abdomen, that was where his consideration of what follows began. In other words, that kind of cast the die. Having seen that, having decided that, he then began to look at what followed with that in mind. You can see the dangers of that. Then, as he begins to factor in the views, do you remember, of the clinicians, that includes views by Drs Evans and Bohin.
That's not the only event, ladies and gentlemen, with [Baby I] where there is serious deterioration that cannot possibly be blamed upon Ms Letby. The next is on the 5th and 6 September. I'll deal with this briefly because it's not on our indictment but, please, just keep it in mind. We have an eighteen-hour period on the 5th and 6 September where [Baby I] deteriorated suddenly and dramatically from being a well baby at 9.35 am on the 5th, according to Dr Neame -- 5 September a well baby at 9 am. Carried on until about 9 in the evening when there was a desaturation to 60%, bradycardia requiring oxygen. Then, as the hours go, by more desaturation, abdominal distension, mottling, into the next day, and she was transferred to Arrowe Park at 15.00, which is then actually where we pick up with that section of the statement that I read to you at the beginning from Nurse Simmons about how [Baby I] could desaturate literally by moving an arm. Okay?
That is serious. We're told it was down to infection, but it shows how quickly she could desaturate, how quickly she could become seriously unwell, so it is no good, we say, starting from a position that a witness can come along at the beginning of any one of the half-dozen dates we're going to look at now and say [Baby I] was doing brilliantly. [Baby I] was not doing brilliantly. She wasn't doing well and her capacity to deteriorate dramatically and suddenly is marked.
The first event, 30 September 2015. This involves a feed at 4 o'clock in the afternoon, 16.00, followed by vomit and desaturation and bradycardia at 16.30. And then a little later, at 19.30, apnoea, desaturation, bradycardia, she was given a Neopuff and air was aspirated. Across this period Dr Evans says this is air down the NGT and Dr Bohin says the same.
We had quite some time -- I'm going to ask Mr Murphy to put up tiles 61 and 62, one goes into the next. We had some time talking -- Ms Letby being questioned about whether a review had really happened at 15.00 that afternoon. Okay? This is that one. It's difficult sometimes to keep track, but if your minds go back to those questions -- can we just scroll down? It's towards the bottom of the page. Pull out for a moment. This is at 13.36. And if we go to the following page it starts 13.36 and then we have a note now:
"19.31. Reviewed by doctors at 15.00 as [Baby I] appeared mottled in colour with distended abdomen, prominent veins."
All of which we now know, ladies and gentlemen, keep in mind, are characteristic of [Baby I] by this point. Point 1.
And amongst various things -- do you remember I said they never actually asked Dr Hunt whether she attended or not, the prosecution, but one thing they said was there was no review at 15.00, there was no conversation with the mother about that, the only conversation was in the morning, and we have a note and the number of ways they say it is false and that is one of them. This is 25 May and the prosecution said to Ms Letby she was lying about a fictional review at 15.00. All right? So focus on that, 15.00 with [Baby I]. You'll remember Ms Letby had been talking about [Baby I]'s mother at some point and they were saying this whole thing is made up.
And to support that the prosecution refer to a statement from [Mother of Baby I] that they said contradicted this and that there was no meeting at 15.00 with the doctors or anything like that. All right? That's the issue. I'm just picking this as one small thing before we look at the events.
The agreed evidence of [Mother of Baby I], [Baby I]'s mother, had been read to you. She wrote a couple of statements that were read. Let's actually see what was said. We've been through weeks with it being left this is a lie, there was no review at 15.00, nothing like this happened. The agreed evidence of [Mother of Baby I] -- there were two statements read on 25 January to you. The extract I'm going to refer to in the first one said:
"I was just changing [Baby I]'s nappy prior to leaving for the day when a nurse called Lucy (at the time I didn't know her name but I now know it to be Letby) came on duty. It would have been around 3 pm. Lucy came over and said that she thought [Baby I]'s stomach looked swollen, to which I agreed, but [Baby I] appeared okay in herself."
She goes on to describe the hospital calling later on.
That's the first statement from her, talking about something involving Lucy and 3 pm, and Lucy saying [Baby I]'s stomach appeared swollen. But if we go on to the second statement -- remember, it's being said the whole thing about 3 pm is just fabrication:
"On this day [she said, talking about this day] it would have been around 12 noon to 12.30, I would only be away for 30 minutes. The first time I recall seeing Lucy that days was around 3 pm, 15.00, when I was changing [Baby I]'s nappy. Lucy walked in and went and stood by the window. She would have been stood approximately 6 feet away from where I was stood with [Baby I]. I remember Lucy looking over and saying, 'I have noticed her belly is distended today, I'll go and get the doctor to come down and check her'. I remember agreeing with her and thinking her stomach did look veiny and swollen."
Lies apparently:
"I was still with [Baby I] when a female doctor came and checked [Baby I] over. She checked [Baby I]'s stomach and said it seemed soft to touch but they'd keep an eye on her. Due to her not showing any concern I left shortly after 3 pm. I have no recollection of seeing any particular member of staff that day apart from Lucy."
Now we have spent a lot of time, before the defence have had the opportunity to stand up and address you on behalf of Ms Letby, with Ms Letby being hauled over the coals about a fictional review at 15.00 and being told that's a reference to [Mother of Baby I]'s statement and how this doesn't dovetail with it all and how she's made it up and she's lying. Well, we have just had a look there at the agreed evidence that you weren't taken to a the time those things were being said, which has [Mother of Baby I] describing what we have here. That's what happened.
If she got that wrong, that's a good guess by Ms Letby at the time she made those notes. Well, it's not, is it? That's what happened. My word, we spent a lot of time with the prosecution trying to show, oh you're lying, you're making stuff up. It happened. [Mother of Baby I]'s mum (sic) remembers it and she talks about it in a statement which wasn't read to you.
Naming doctors: oh, you've not named the doctors. Plausible deniability. Murder. Really? They don't always name doctors. If we look at the tile from the [Baby C] sequence. Tile 112, please, Mr Murphy. This is a tile -- a note at 16.19 by Nurse Williams. If we look in here we'll find -- there we are, second line down:
"After discussion with Registrar Ogden on ward..."
I've got the wrong one, I apologise. I am actually looking for tile -- [Baby M], sorry. [Baby M], tile 148. A cross-reference, ladies and gentlemen.
Mary Griffith, 9 April 2016, fifth line up. It starts, ladies and gentlemen:
"Next feed the aspirate was 1.5ml and bile-stained. Shown to reg and baby put nil by mouth. Nasogastric tube on free drainage", and so we go on.
Sorry about the mix-up, I went in the wrong direction. This is where we are going.
I'm having to deal with these things because these are accusations that are thrown out in the course of cross-examination and, for all we know, and I don't know what you think, you may have thought, "Yes, that's compelling, she's not given the name of the registrar, that's really bad". You may have thought that, you may not. I don't ask, I'm not entitled to know, but I have to deal with that possibility.
So many things are thrown at her that others do that, unless you apply a presumption of guilt, simply do not go to prove what they're said to prove. So a little time before we actually get to the events, just dealing with two of the things that were thrown out there: that she'd made up a review at 15.00, with [Baby I]'s mum there and a doctor. She didn't. It's in the statement of [Mother of Baby I]. And that she sticks down entries without doctors' names because that is to do with hiding what is going on and that isn't what happens, it happens elsewhere. You'll probably find other examples.
So 16.00, ladies and gentlemen, the first event. We can take that down, please. It happens at 4 o'clock, during the day. There goes the night-time theory at this point, remember, about night-time and it being quiet? That one went fairly early on in the case.
Vomit, desaturation and bradycardia, like others in this case. Coming in the course of this. But we say nothing in itself suspicious. Lucy Letby calls for the doctors, calls for them in good time, plenty of opportunity to stabilise, and that's what happens. There we go, 4 pm.
In fact at the time there were various concerns as to her health. Dr Harkness said there was some concern as to NEC. Owen Arthurs said on the radiographs there's an indication of NEC. We're not required to say what it was, we may not be able to. What we're looking at is: is this something which makes us sure that harm had been done to [Baby I]? And not at all, we say. Sadly, this is what happened and would happen.
The later event at 1930 took place at handover as Nurse Butterworth came in. We ask, or raise, the question in passing: what is it Ms Letby's meant to have done? We know the allegation is she forces air in. That's the allegation, she forces air in, because air was taken out.
Right. Bernadette Butterworth told us about the use of Neopuff. The facts of these sometimes come back as you begin to go into them. You may recall this one because this is the one where [Baby I]'s tummy expands as the Neopuff was used on her.
And Nurse Butterworth told us about the use of Neopuff and that even over a short period that could make the abdomen inflate as you watched and she described that graphically and explained how that happened and how they needed to Neopuff [Baby I] and it was only after that that the abdomen extended and the air was aspirated. And we can see her note at tile 94 of the first [Baby I] sequence. That was it I think. Tile 94, sequence 1:
"During handover [Baby I]'s abdo had become more distended and hard, she had become apnoeic and bradycardic and sats had dropped. IPPV given and, despite a good seal with Neopuff, there was still no chest movement. Aspirated NGT: air +++."
And in her evidence she described [Baby I]'s abdomen getting more inflated as they used the Neopuff and she said this about it when questioned. She was asked by me:
"When handed over..."
I asked her about the handover. She said:
"When we handed over we were having handover she would have become the desats and bradycardia that would have happened. We then would have gone in to give the Neopuff [as read]."
Although I put it the other way round:
"We started the Neopuff and obviously we are putting, like, air into her tummy and sometimes the tummy can increase if you are Neopuffing and become hard. Sometimes that can push up the diaphragm if the tummy is that full of air."
Just listen to this ladies and gentlemen if you would kindly. And you are. But how important is that:
"Answer: If you're Neopuffing it becomes hard and sometimes that can push up the diaphragm if the tummy is that full of air.
"Question: That's helpful. That's what I wanted to ask if I may say. That's the order in which it took place?
"Answer: Yes, it would have. Whether she desatted first or bradycardic, those two things would have happened first.
"Question: But as for the abdomen becoming more distended, was that something you could actually see happening as the Neopuffing was taking place?
"Answer: Yes, I think I could.
"Question: And that's why you then asked Lucy Letby to get the air out by aspirating?
"Answer: By aspirating.
"Question: And you recall that some air and some milk came out at that point?
"Answer: Yes."
Crucial evidence we say, ladies and gentlemen, as it happens, that breathing support can cause abdominal distension in a baby who was prone to that as it happens. And here with nothing more than a Neopuff. And that is something that can be applied across this case where you find it appropriate to do so. But that's it actually happening there and then.
We'll turn to event 2, ladies and gentlemen, with [Baby I], and we'll start upon this and then at an appropriate point may we stop, my Lord? This is one which we could say is one of the factually vivid allegations, isn't it? Something we've looked at and probably can envisage, ladies and gentlemen, and this is the deterioration at about 3.20 in nursery 2 when Ashleigh Hudson had been caring for [Baby I]. It's the one at the door, what could Ms Letby see or not see, that one.
The harm alleged from the experts or by the experts, from Dewi Evans, is air down the NGT and air embolus. Dr Bohin, air down the NGT, maybe, not too sure, and air embolus. Okay?
Just at this point in time, ladies and gentlemen, just putting together everything that was happening, this is event 2 at 3.20 on 13 October. We'll then come to event 3, which is on the morning of the 14th. And then actually, when we went to the evidence, deterioration continues, stops a bit, then on the 14th it goes into the 15th and [Baby I] became unwell, Ms Letby isn't charged with anything then, and she ends up having to be transferred to Arrowe Park on the afternoon of the 15th, at that point with suspected NEC. But no one's suggesting that accounts for anything at the beginning of this. I'm just saying that's how it went. Not even that, by the way, if it was suspected, if it was NEC, can be blamed on Ms Letby.
We say to some extent, whatever's happened, this series of allegations can't, events 2 and 3 -- well, if you start at one end, yes, maybe you say, there we are, Ms Letby must have done something. If you start at the other end, on the 15th when she had to go to hospital and she deteriorated overnight and nothing was alleged against her over that, the night of the 14th into the 15th, well, maybe that shows what was going on and it all building up to that. It depends on which way you look at it to some extent.
If we look at the whole picture we say there is a bit of artificiality in sub-dividing it, really, into three bits. Event 2, when it started, that's Lucy Letby. Event 3, as it was ongoing on the morning of the 14th, that's Lucy Letby. At the end of it, as we go into the 14th into the 15th and daisy becomes unwell and goes to the hospital elsewhere, that's just left. We say that's the key to it: she was very unwell and that's where we ended up.
One of the topics which has, at points, perhaps been difficult to define how it applies is the question of experience and staffing, something the defence have identified, and there's no doubt there were clear staffing pressures over this period when the hospital was taking on more babies and babies with higher needs. We've had that from many practitioners.
One of the issues, we say, is that when that happens inexperienced people may be put in positions where more experience is required and things like monitoring may not happen as they should be done.
When we come to what was happening with [Baby I] and antibiotics at this point, we say we do actually have a very clear example of the wrong approach to monitoring going on. Whether that then feeds into what happens is a matter for you, but I'm going to identify it because we're not saying these things without evidence in support of them. We say it can't be disregarded. Ashleigh Hudson was the designated nurse for [Baby I] on this night. And Ms Letby says, well, she was quite inexperienced to be looking after [Baby I], who needed close monitoring to look for any changes -- and we know in these babies the changes can be rapid and they can be subtle.
Ms Letby explained that Ashleigh Hudson wasn't monitoring [Baby I] as she should have been because she was on antibiotics and the monitoring wasn't being done properly and she was criticised severely for that as if it was something without any basis. It was dismissed, but in fact the evidence of Dr Newby on 1 February was that a baby on antibiotics should be monitored for heart rate and respirations, not because everyone's bored and they've got nothing else to do, but because if that's the condition of the baby, it's serious: they're on antibiotics, watch them. Watch them.
We left that with a suggestion, it seemed, that the antibiotics had been stopped 48 hours before the incident anyway. That seemed to be a suggestion that we stayed at. That's not right, that's wrong.
[Baby I] was on antibiotics up to right up to the time of this. There should have been monitoring. I'll just quickly run through the tiles that show this. Can we have at look them from the sequence 2, Mr Murphy, tile 11.
So we've got 12 October -- and don't forget, ladies and gentlemen, the event we're looking at is at about 3.20 on the 13th. So 12 October, there we are. Antibiotics at 7 in the morning.
Tile 21, please. Later on that day, 4.20 on the 12th, antibiotics.
Tile 40, please. Antibiotics literally hours before the collapse.
So they weren't stopped well beforehand: she's on antibiotics over this period. This isn't good. She's having to receive medication, she's meant to be monitored. We can see where the monitoring of heart rate and respiration stops if we look at tile 14. So we've got this going on right up to the time shortly before this collapse and on tile 14 you can see there where respiration and heart rate cease to be monitored. You can see they cease to be monitored from about 9 pm on the 10th. This is wrong. Simply it's wrong. Whatever else this takes us, this is wrong. We have had the evidence from Dr Newby: on antibiotics they should be monitored for heart rate and respiration. Antibiotics had not been stopped 48 hours before the events, they are going on right the way up to it, she's not being monitored properly.
That means, doesn't it, that as it happens, though again, you can miss this when you blink, vital signs in this sense were not being monitored in the hours before the collapse, so we don't actually know -- we have heard lots about how, oh, they were stable, their obs were good, all that sort of thing. We can't really say that here because we don't have it and we should have.
Could I stop there, please?
MR JUSTICE GOSS: Certainly. A ten-minute break, please.
(3.09 pm)
(A short break)
(3.20 pm)
MR MYERS: Ashleigh Hudson had been away from nursery 2 for, what, maybe 15 minutes, something like that, having asked one of her colleagues to keep an eye on [Baby I]. She wasn't sure whether it was Lucy Letby or Caroline Oakley.
When she comes back, no one is in the nursery, but she walks over to the nursery, and she seems to go there with Ms Letby, or a point comes when she is in the room and Ms Letby is in the doorway, not in the room. It's a small room, ladies and gentlemen. [Baby I]'s cot is feet away. Ashleigh had her back to [Baby I] -- she had come in with the milk and it seems actually she hadn't looked at her.
There was certainly enough light for Ashleigh to read the name on the bottle, check the serial number, and draw milk into a syringe. And Ms Letby described standing at the door and she looked across and she said she remarked that [Baby I] looked pale or a bit pale, and Ashleigh who hadn't looked, really, until they turned the lights on saw that and they see how badly [Baby I] is doing. And she's gasping intermittently, so the apnoea alarm hasn't sounded, and we take it from there. That's it.
You'll look at the points here and the evidence closely. It comes from Nurse Hudson: she hadn't looked at [Baby I]. Her attention was on the milk, although feeding wasn't for hours away, which is a strange feature, actually. If you care to look you will see she is on feeds intermittently and there wasn't a feed due for some time, but that's the situation.
Ashleigh Hudson embarked on a lighting reconstruction 5 years after the event. She went back to the scene with the police and photographs were taken. Evidence that we say is entirely manufactured -- I don't mean that in a pejorative or a negative sense, unwittingly, but it's being made for a purpose, isn't it, as part of this investigation?
Nurse Hudson and the police came up with a room so dark you would be able to tell nothing about the baby even if you were monitoring him. That's so dark, actually, when you look at that photograph, it would be hard to even put the milk into the bottle, measure it out, read what's there, but those are the photos that were taken and Nurse Hudson picked the very darkest one. We looked at that. Remembering back 5 years.
Well, the evidence of Nicola Dennison, who gave evidence on the [Baby J] count -- and we'll talk about that probably tomorrow -- talked about how the nurseries are arranged so you can see the children that you are looking after. Babies who present the greatest concern were placed, by comparison with nursery 4, in nurseries 2 and 3, and nursery 2 is where [Baby I] was. And that's illuminated by light from the door and the window and it is easier to see. We say that Nicola Dennison's evidence creates quite a different impression from that of that Ashleigh Hudson and her photo selection with the police 5 years later. But it is consistent with what you might expect, because it's fairly pointless having nurseries like these if you can't actually see the babies by looking into them.
When she was asked questions Ms Letby answered at one point:
"I had more experience so I know what I was looking for."
Then she said, "or looking at", and the prosecution seized on that, and the fact that she did what might be described as a double fault at that point, questioned what she'd just said.
In fact, if we just strip that down to the basis of what was said, ladies and gentlemen, it's the type of issue pre-eminently for you to assess, isn't it? Do the words make a difference? Someone who is experienced, we say, knows what they're looking for. You may recall the point at which this happened, the ninth day of evidence, the fifth day of cross-examination, at a point where, we say, Ms Letby was very tired and was finding it increasingly difficult to concentrate. You may remember that session as we went along it. And it was in those circumstances that she said this.
I don't really make excuses because on her behalf we say to you there's no real distinction between "what I was looking for" and "what I was looking at". It's a kind of point that came out of it because of the way it was seized on and that's as far as that goes.
There's a very big window, isn't there, right next to nursery 2, set in the wall and right next to the nursing station, literally looking into where that cot is. In addition to being an opportunity for light to enter the room, even if it's on dim, it also gives anyone on the outside an opportunity to look in. And you may think that's a very odd place for someone to commit an offence of attempted murder in those circumstances like that, even if they were minded to, which we say Ms Letby wasn't.
But however dim it is, it is unrealistic to suggest it's so dark in that nursery that it's impossible to see what one of the babies looks like. It's the type of suggestion which is attractive set against the allegation and the suspicions in this case, but it's not very realistic, we say, if you consider the situation and what was meant to be done there.
But that type of area isn't a matter for expert evidence, certainly not a matter for what I say or anyone else says about it. Where you come to on that is entirely within your province because this is the sort of thing you can weigh up well, ladies and gentlemen, together considering the evidence.
What about the mechanisms in this situation that are alleged to have been used? Dr Evans, in his first few reports -- we looked at this with him -- suggested air had been forced down the NGT. There is a problem here with the air down the NGT theory, which became apparent in the period before the trial when the experts identified there was no NGT. So option number 1, which they had gone with, air down the NGT, sort of fell apart at that point to begin with.
In fact what Dr Bohin went for was this:
"Starting with air down the NGT, there was a problem because there didn't appear to be an NGT in at the time."
In her report Dr Bohin had said:
"I don't think [Baby I] had an NGT in situ prior to this event."
So that's pretty plain. However, in evidence we got to the point where it appears she was suggesting that maybe the attacker, and you'll remember this, had darted in, carried a spare NGT that they had whipped out, put down, forced in air, and then vanished, carrying it around, a mobile NGT to pop in when required and then take it out.
Given that air embolus is also suggested, we are not told whether the whipping out of the NGT was done at the same time as the air embolus, whether it was done beforehand. You may wonder what on earth is being suggested with an alleged murderer running round switching between modes of attack like this and if that's realistic or does it not rather reflect the determination of the experts to come up with something, anything, that they can work into the available evidence?
All done, by the way, with an open door and people able to look through the large window from the nursing station and into whatever it is that is happening there.
What's the evidence of air embolus? There's precious little, ladies and gentlemen, for air down the NGT because there wasn't one. There wasn't, unless we go with Dr Bohin's whip it out, pop it in there in front of everybody or nobody, or whatever, and have a go and then vanish with it, like you carry it around with you for that purpose.
Air embolus. It seemed to be the basis, when we got down to this with Dr Bohin, was discolouration of the sternum. Remember? She is -- she relied upon that with air, embolus that there was discolouration over the sternum. And we say that Dr Bohin is demonstrably wrong to rely upon that.
[Baby I] underwent protracted CPR after this event and what was seen hours later was bruising. If you look at the notes -- and perhaps just make a reference, ladies and gentlemen, if you care to, to tile 49 of the [Baby I] 2 sequence, the notes of Dr Neame, he makes reference to the CPR and -- although reference to [Baby I] being pale and that there was some mottling, but that's that. No discolouration that stands out.
Lucy Letby's notes from later that day, tile 40, refer to some:
"Bruising evident on the sternum and right side of the chest [query] chest compressions."
Okay? The bruising that Dr Bohin was talking about is what we see recorded in the clinical notes at tile 143. So let's have a look at this. It's from a ward round the next day, 13 October. If we just -- we can see reference to:
"Cardiac arrest overnight [query] compressions."
If we just keep going down and see what's at the top of the next page. Thank you:
"Bruises [bruises] right-hand chest from compressions."
That's it. We looked at this with Dr Bohin. That's it. This isn't discolouration from an air embolus. It is what it says, it's bruising. An air embolus doesn't cause bruising. Doctors are perfectly capable of identifying the difference. This is bruising from chest compressions and this is an attempt by Dr Bohin to use, we say, the available evidence to sustain a theory that is unsustainable. That's it. You won't find discolouration anywhere else, that's what she was referring to near the sternum, that's it.
And part of what we have to be sure about in this case is the mechanism, don't we, that harm was done and we need to look at the basis for that. We submit that there is no clear basis that can sustain what it is that's meant to have happened. Air embolus? No. NGT? No, unless we invent someone using one in a mobile fashion in the most improbable of circumstances.
Event 3, the morning of the following day. Take that down, please, Mr Murphy, thank you.
14 October. At 5 o'clock in the morning, [Baby I] had a distended abdomen with discolouration on the right side and deterioration requiring ventilation and resuscitation. And then again at 7.30, at handover, she desaturated with bradycardia and discolouration. And Ms Letby was her designated nurse, by the way, as we know, on this shift at this time leading up to the handover.
Dr Evans says this is air down the NGT. Dr Bohin, air down the NGT and air embolus. We have air emboluses literally coming in everywhere from the experts from this point on in this case. Nothing happens almost without an air embolus -- well, it does on some of them but it's pretty common now. You'll see when we go along.
The events here consisted, we say, of a mass of evidence where they really blur from one to the next, with the common feature being the presence of Ms Letby. If you actually look at the evidence, and keeping in mind, particularly the allegation that an air embolus -- 05.00, Ms Letby's note which is at tile 40 describes:
"Abdominal distension with prominent veins."
That was a feature. Well, that's not unusual for [Baby I] in this case. Nor is abdominal distension unusual.
Abdominal distension is key to this allegation. Abdominal distension is key to [Baby I]'s condition from the statements that were read, from 23 August, the harm event that isn't, with significant distension. Okay? It's what happens with [Baby I]. That doesn't mean somebody can't have done harm, we know that, but just to say there is an abdominal distension and therefore that raises a likelihood or that you can be sure of harm, no, not in the position we are dealing with.
There was discolouration on the right side of the abdomen, but we say that alone, or even in conjunction with the distension, is no basis for saying an air embolus and distension has nothing to do with an air embolus anyway.
That largely is the evidence there. There's a point about Matthew Neame's notes, 05.55, and it's got in Nurse Letby, that at 05.00 the event happened and she called the doctor. But that's not very probative of anything apart from he got there sometime after he called her (sic), there was a lot to do and then he wrote his notes up.
I do ask you to keep in mind at all times the unpalatable and unhappy allegation, but to measure it against this -- and I said we would: intent to kill, an intent to kill. It's not -- how on earth is it? How's it meant to have been done and why does it not succeed?
Then at around 7.30, further desaturation, bradycardia at handover. Nurse Tomlins was there taking handover, it happened in front of them standing there -- and don't forget there had been care for [Baby I] in the period since the collapse when Dr Neame had attended, I am not suggesting all the time, I'm not suggesting it's physical impossibility for anyone to have done anything. I am not trying to be unrealistic in that way.
But again, it's the power, isn't it, of, as has been said earlier, circumstantial evidence. It all mounts up. We keep on having situations where we don't have Ms Letby doing anything that she shouldn't do. And in front of everybody, a busy time of day, [Baby I] desaturates and becomes bradycardic, which can happen if an arm is moved in the wrong way according to the nurse from the hospital, Liverpool Women's Hospital or Arrowe Park, on the 5th or 6 September.
It's the importance of -- sadly, we are not dealing with, for instance, a 2-year-old toddler in robust good health. This is nothing like it. [Baby I]'s weight has been diminishing, there have been a series of incidents, a large number of which cannot be blamed on Ms Letby, and it gets worse over time as her resources are depleted and so when something goes wrong it gets worse.
Her abdomen on this occasion was large and veiny. All right. Well, maybe if that had never happened before it might be remarkable, but it had and, ladies and gentlemen, we suggest it isn't remarkable.
Discolouration identified, slightly grey and darker than the rest of her body around her abdomen, but certainly nothing to match what is to be expected from air embolus or, let me say, what was to be expected of it at the start of this trial. By this time in the evidence, really, we're going to the point when the experts have jettisoned any principled application of a theory and you saw it happen when we got to discussions about chickenpox and things like that.
Do you remember Dr Bohin saying it was like chickenpox? (Inaudible) chickenpox, it's like that with air embolus. How does she know that? Where has that come from? That's literally a theory invented in the course of this case for the purpose of sustaining this prosecution because we didn't start with that.
We've been critical of the theory of air embolus. We are also critical of what's said about air down the NGT with such abandon whenever there's an abdominal distension because that's being trotted out to you, ladies and gentlemen, like there's some principled theory it's based upon. Putting aside how unlikely it is for someone to keep on varying methods of attack, what evidence do we have about how it's done? How long it takes? How long does it take? How long does it take to distend an abdomen to a certain length? At what point does the diaphragm get splinted? What other things can happen to the air? How long can it remain there without passing out?
We've got some instances where there's a radiograph at one point and over 12 hours later there's allegations that there's some episode that happens because of it. I think that happens in the case of [Baby P]. The night before there's some distension on a radiograph, the next morning there's all the aspirates during the course of the night, and the next morning you remember Dr Evans saying:
"It just took a dollop more air to take him over the line"?
What, from the radiograph from over 12 hours beforehand? It's not just air embolus which is a theory that's been put together for the purpose of, we say, in large part, supporting a prosecution, you think back to any principled description of how air down an NGT is meant to be used. It's trotted out like it's the answer. How? How is it done? How long does it take? How long does the air stay there for? How quickly does it happen?
Because if it would happen quickly, if enough air is put in to splint a diaphragm -- and if it does splint a diaphragm, surely that's going to have an effect very quickly, why don't we have it happening quickly like that, with someone being seen to interfere and the baby then going into arrest or unable to breathe? We don't have it, do we? We just have it as a concept.
Event 4, the 22nd into 23 October, the night that [Baby I] dies. So the 22nd into 23 October, there are two timings to this event, two very similar deteriorations, and that's really significant we say. Because two very similar deteriorations but two different people. Okay? Two different people.
23.57. There's a desaturation and CPR is required with an abdominal X-ray taken at 00.23 which shows some distension. Then 01.06, there is a desaturation and CPR from which, very sadly, [Baby I] did not recover.
Dr Evans says air down the NGT and air embolus. Dr Bohin says air down the NGT and air embolus. This is desperately sad, so much about this case is desperately sad. This is no different. But we start with an event at 23.57, where [Baby I] is being watched over by Ashleigh Hudson, who has been watching over her in the period leading up to her becoming unwell, and that rooting thing and getting upset and not settling and then going into a collapse. She's with her. She sees it as it happens. Nobody has done anything to cause that to happen. It doesn't suggest there's a period she wasn't there: she's been with [Baby I] and it happens as she watches, crying loudly and relentlessly, Ashleigh Hudson isn't sure why.
Then we have a similar event at 01.06 when it seems Ms Letby is there. And the only difference really is the event with Ms Letby comes after what [Baby I] has been through after she'd been with Ashleigh and, of course, the crucial ingredient, Ms Letby is there.
What is she meant to have done, first of all? If we take this event as it's presented from the beginning at 23.57, what? There is absolutely no opportunity and no evidence unless we invent situations that are a million miles from the evidence. This is important because we say the second collapse comes about in really just the same way and starts in the same way, even down to the same sort of crying as there was on the first one when [Baby I] was with Ashleigh. So if we find or agree that Ms Letby is not or might not be responsible for the first -- and we say the evidence, actually, makes it most unlikely that she could be -- then what is the basis for saying she's responsible for something that is so similar that happens again within about an hour or so? Particularly after everything [Baby I] had been through with CPR and a ventilation which starts and then stops. How on earth does that translate into Ms Letby now being responsible for something when this began in the way it did?
At this point [Baby I] was a very poorly baby and I mean before we go into this particular night and it would be nothing but complacent to treat her as anything other than that. This is the point when her weight is down to the 0.4 centile and her system would have been under terrible stress. There's a note by Dr Gibbs, which is in the pages at 4927, that we saw with Dr Gibbs. I wonder if we could just put that up, please. It's down in the bottom -- there we are -- in the distinctive handwriting. We'll be coming back to this in a little bit, but could we just enlarge the lowest part, please. It's a note made at the review on 9 November.
Can you see just this, a comment here, six lines up:
"Poor response to second resuscitation might have been due to heart being compromised by previous collapses."
It's hard to... Anyway, previous collapses. Do you see that? That's the point. She was very weak by this point. Air down the NGT. What's the basis for that? It seems the experts point to the radiograph at tile 116. Tile 116. In fact, that's a radiograph that was taken -- we don't need to go there -- at 00.23. Okay? We need to keep in mind the timings, ladies and gentlemen, because we have a collapse at 23.57, so 3 minutes to midnight. Twenty-six minutes later, there was a radiograph taken and then another collapse, and the experts rely upon that radiograph to say, "Look, the abdomen's distended".
Somehow, in the course of all of this, it's then said that must be Ms Letby's fault. The abdomen only became distended in the response to that first collapse, as it happens, and that's on the evidence. Ashleigh Hudson was asked about this and about what was in her note at tile 91 of the [Baby I] 4 sequence. Let's have a look at this detail. The detail matters.
Tile 91. Just enlarge the main body, if you would, on the right-hand side, and scroll it down so we can go up the page. This is Ashleigh Hudson. In fact, we need to look at the other page, Mr -- or the top just to see who writes the note, please, just so we've got it. Okay, Ashleigh Hudson, 03.39 on the 23rd. We can move across, please, and now have a look at the top because this is so important. 23.57, [Baby I] is unsettled due to hunger, rooting. She's with Ashleigh Hudson, okay? We can see what happened. We can see the treatment. We see Neopuff is applied. We know about Neopuff from a number of people and, most graphically, today, from what we looked at with Bernadette Butterworth.
We carry on down here. Look at what we have just towards the last couple of lines, and Ashleigh Hudson was asked about this in evidence and agreed with it:
"Prior to ventilation [Baby I] had become more alert and crying Abdo soft [abdo soft!] and non-distended prior to resuscitation."
That's what we're looking for. Right there is the answer to a distended abdomen on the radiograph at about 23 minutes past midnight. It's there in font of us -- doesn't stop this accusation being brought. I suppose that's why we're having a trial: to look at it. There it is, as Ashleigh Hudson said. She checked at the beginning of this. It's there, it's in the evidence, her abdomen was not distended at 23.57. It became distended during resuscitation. We know why. It's in there. An utterly false basis to say air has been forced into anybody. That is demonstrably wrong with the experts, although they're still ready to support the allegation with this.
And actually, it makes absolutely no sense because you'll remember the medical decision was to take [Baby I] off the ventilator at this time. You may question that, but that's the decision Doctors Gibbs and Chang reached. How could that happen if she's got a diaphragm being splinted at the same time? How could she have been so well, as they thought she was, or capable of coming off it and being allowed to recover if she's in the middle of a "diaphragm being splinted" moment, which she plainly wasn't? But the key detail is there's our answer to distension. It wasn't that she had something that distended her abdomen and caused a collapse, the distended abdomen comes after the (inaudible) due to resuscitation.
All right, that's that. Air embolus, then, next. Air embolus. They don't stop, do they, the prosecution experts? Let's go with a -- that one fails, we'll have a different theory. Air embolus, once, twice. How? Was it done in the middle of resuscitation? We don't know. Was it done after resuscitation when she was with Ms Letby, yeah? That's the implication, isn't it? When she went through exactly the same deterioration, really, that she'd gone through an hour beforehand with Ashleigh Hudson, but in the case of Lucy Letby that would be an air embolus then?
Doctors Bohin and Evans make a lot of the distress by [Baby I] on this occasion and about the cry that Ashleigh described. Well, the cry both times, both times. We've already said to you, ladies and gentlemen, one of the prime things we have to say about this part of the theory about distress. It's not something that was given to us at the start of this case as a sign of an air embolus, it's something that appeared in the course of the [Baby D]'s case, working its way in because she'd been distressed on one of the occasions, although not the one in which she collapsed and died. But it found its way into the theory and we went on from there.
The experts had referred to it, we went to look at it in their reports where they talk about it, but we say that is still something they'd worked into during the course of this, during the course of the events that take place. We see it on -- and if it was something that was a principled element of air embolus, it's something that they would have reached for at the very beginning when we asked them to set it out. They didn't.
And how is this -- is this an air embolus at 23.57 from which there's an extraordinary recovery or is this an air embolus at 01.06 or both times? We just don't know, do we? Pausing there, we do observe this. This is the point. This little scene plays out, if you remember, between Dr Gibbs and Dr Chang with the pros and the cons. Do you remember that, about, "Do we take [Baby I] off the ventilator, do we leave her on the ventilator?" Pros and cons. I was interested in the cons. There was silence from Dr Chang at that part and we didn't get any.
If we look again at that note from the debrief by Dr Gibbs at page 4927, Mr Murphy. Could we go to that page? 4927. Just look in the body of this, ladies and gentlemen. In fairness to Dr Gibbs, he writes this, doesn't he? It's the second or third paragraph down:
"Accept that removing [or something] ETT after first collapse might have not helped."
Right? "Might have not helped." That's a more precise detail of what could have contributed to the overall situation than anything the experts have contributed, we observe, ladies and gentlemen. "Might have not helped". Well, we don't propose to set out how or why what happened happened because we don't have to. I don't say that being belligerent, it's just because we don't because it's not always clear, is it?
Again, really, apart from the card, there I would leave it on [Baby I], apart from items that were thrown out there in the course of cross-examination, documents in an attempt to support what we say is a weak allegation, tragic as it is. One of them included an entry on tile 179. It's to do with changing a timing. It says 1.25 on tile 179. Do you remember this? We were asked, "Look, is that you? You've changed it where it says '1.25, sodium chloride'"; yes? 1.25.
Let's cut straight through it, really. I mean, first of all, we know nurses do change things. Ms Letby -- it becomes a criticism. But if you don't mind me saying this, so what? What does this prove? How does this have anything to do with anything, apart from they've cast around for something where there's been an amendment on a document at a relevant time and reached for it as some kind of vague -- that it's got something to do with the allegation. This all comes after what we're dealing with, not before, not during. What does it have to do with anything? I'm only picking it because it was put there before you and we say it's got nothing to do with anything here. It's the type of thing that's thrown at Ms Letby and at you and at us in the course of the questioning.
Likewise page 3 -- the baby HS. Do you remember the baby HS who was going to Stoke? Ms Letby was looking after HS in nursery 2 and there's the question about, "When did the 10% glucose infusion start? Were you cooking the notes? Were you laying false trails?" What that came down to was an infusion chart at page 34542. Scroll down, please, Mr Murphy. There we are, 34542. Do you remember this, where it looks like a time has been changed or amended to -- from whatever time to 24.00? We see that.
That's kind of thrown out there like, "Ah, look at this, hey", and everybody's like, "Oh yeah". Oh yeah, what? Okay, what is this meant to establish? How is this something done deliberately rather than correcting a mistake? [Baby I]'s collapse -- she'd been in the care of Ashleigh Hudson at 23.57 and we know Lucy Letby comes to help then. So we know where Nurse Letby was at about 24.00. This doesn't change anything.
Now, if a time had been changed that put her some distance away from nursery 1, let's say at 23.50, trying to sort of say, "Look, I was nowhere near, I've changed it to a time before anything happened", okay, there might be some merit in that suggestion. What's the point? What would be the point of changing it to the time when you know, and everyone knows, where you are if it's something that's done deliberately, ladies and gentlemen? What's the point of creating an entry that would -- deliberately, this is, rather than a mistake -- that puts you somewhere after the collapse? Slightly misses the point doesn't it? We don't say there's any point at all. We apologise for dignifying these questions by dealing with them now, but we have to because these are the sort of things that got thrown out as we went along, we say to compensate for the shortcomings in the evidence that actually matters, and you can decide that.
Ladies and gentlemen, I just conclude with the image of the card. We can take that down, Mr Murphy, thank you. [Baby I]'s funeral was on 10 November 2015 and various staff members went to that. Ms Letby couldn't, she was working at the time, we've got the shift pattern. She sent a card and we've seen images of the card that she sent and they were taken at 7.34 on 10 November in a location at the south corner of the Women's and Children's Building and that coincides with them being taken whilst at work.
She says some -- one of the things she does, photographs cards, photographs cards that are nothing to do with this case. And in fact, amongst the images recovered from her phone by the police was that at D29. I wonder if we could just put this up, please, Mr Murphy. Actually, if we go to page 33734, not this one because that is the [Baby I] one. Sorry, I apologise.
Just enlarge this. This is on the same section on the phone: Roger, Tash, someone else, "Congratulations". This is another photo, it's in the same sequence, a photo she took for people she says are friends of hers. Taking a photograph, one of the things she does. People have idiosyncratic things they do, whether it's accumulating paper, the way they use Facebook, the clothes they wear -- I'll pick something that doesn't apply to Ms Letby. People have ways they do things. One of the things she does is photograph cards, photographing a card that's received from the [family of Babies E & F], she photographed a card she sent to the [Baby I] because she couldn't go to the funeral. A number of other staff went. She's photographed a card from some friends of hers, that's actually found in the same exhibits.
There's a particular picture of Nurse Letby that has been pushed to you throughout this case, but I'll leave you this afternoon with a more revealing picture, we say, of what was happening here and that's the evidence of Lucy Beebe or Hunt if you remember. She had been called to give evidence during the [Baby I] counts and she gave evidence of finding Lucy Letby crying. This isn't a misleading impression, she came upon her crying, and what she said -- she describes 27 January. Ms Letby wasn't making a particularly big deal, but she was saying, "Why is it always me? Why is it always me?" We say that she's failing at something that she wanted to do and it's a rare but genuine insight into how things were for her.
I said to Dr Beebe:
"I think you told the police that, looking back, given what was happening, it seemed a pretty normal reaction to you, how upsetting it all was?"
And she said, yes, it's a pretty normal reaction and a glimpse of the person then and how she was feeling then, which is a million miles from the way that she is being portrayed to you now, ladies and gentlemen.
My Lord, I wonder if that's a good point to stop.
MR JUSTICE GOSS: Yes, certainly. If that completes --
MR MYERS: It does.
MR JUSTICE GOSS: -- that section. Thank you very much.
All right, members of the jury, 10.30 tomorrow morning, please. Remember your responsibilities.
(In the absence of the jury)
MR JUSTICE GOSS: I'm very conscious, Mr Myers, that you're focused on your address to the jury. What I shall do is I'll have another look tonight -- I'm sorry to keep sending you revised versions, but I'm just trying to refine it, anticipating -- I don't know whether Mr...
MR MYERS: We will respond, my Lord, this evening to that.
MR JUSTICE GOSS: If you could. I think it'll just be helpful because I anticipate that you are not going to complete your address much before the end of Friday's court sitting day.
MR MYERS: Yes.
MR JUSTICE GOSS: You'll occupy nearly all of Friday?
MR MYERS: It's entirely possible. I'm endeavouring to make sure I complete it within that time because it would be helpful to do that and we anticipate we will do, but it may take a lot of Friday to do that.
MR JUSTICE GOSS: Exactly. Any time after 3 o'clock that you complete that, I'm not going to start a summing-up. That will be helpful, I think. When we get to Friday, I think it would be helpful for you to know and for me to know.
MR MYERS: Yes, and I apologise for the delay.
MR JUSTICE GOSS: No, I've said you've got enough on your mind without worrying about --
MR MYERS: Yes. I should say I am assisted, and ably, but as your Lordship understands, ultimately I bear responsibility, therefore it can't come to your Lordship, notwithstanding the assistance I receive, until I have applied myself to it.
MR JUSTICE GOSS: Any time --
MR MYERS: We shall do that.
MR JUSTICE GOSS: -- before -- well, before we sit tomorrow morning. That will be fine if that's convenient. Visit?
MR MYERS: Yes, please, my Lord. Thank you.
MR JUSTICE GOSS: I should actually say -- the defendant needn't be present for this -- it's just in relation to the direction, that in response to the prosecution suggestion about witnesses, other than those screened, I'm going to say something about, "These are witnesses who gave evidence either from other parts of the country or from abroad". I'm not going to put it in the written direction, I'm just going to -- at around that point say "other witnesses' convenience and good reason", no significance whatsoever in relation to that. So that's just allaying the fears of Mr Astbury.
(4.03 pm)
(The court adjourned until 10.30 am on Thursday, 29 June 2023)
Thursday, 29 June 2023 (10.30 am)
(In the absence of the jury)
Housekeeping
MR JUSTICE GOSS: Mr Myers, the jury will be leaving at 3 o'clock this afternoon. I propose to have a shorter lunch break to try and make up some of the time that will thereby be lost from the normal court day, so we will have a 45-minute lunch break and then we'll just have one session until 3 o'clock.
MR MYERS: Yes. I wonder, my Lord, whether it is possible to consider starting at 10 o'clock tomorrow or whether that would create a problem with anybody. I'd be keen to have the time, if possible, to make sure I can deal with everything I'd like to, to try to make up for the lost time if that creates no inconvenience.
MR JUSTICE GOSS: Right. I'll check whether the jury can do that. Thank you very much.
(In the presence of the jury)
MR JUSTICE GOSS: Just before Mr Myers resumes, some timetabling issues. To accommodate one of you this afternoon we will finish at 3 o'clock, but in order to make up some of the lost time, I hope it won't cause undue inconvenience, we will only have a 45-minute lunch break. Would we be able to sit at 10 o'clock tomorrow morning? Would that cause any undue inconvenience to you? I'm anxious that Mr Myers completes his address tomorrow. 10 o'clock tomorrow? So be it. Thank you very much.
Closing Speech by MR MYERS (continued)
MR MYERS: Good morning, ladies and gentlemen.
[Baby J], count 13. We'll start there today. [Baby J] was born on 31 October 2015, 15.00 hours. She was 32 weeks and 2 days' gestation and she was 1.709 kilograms in weight.
We're looking at events, on this charge, on 27 November 2015 and you'll recall there are two pairs of events. It's the second pair that form the substance of the allegation. The first pair are at about 04.40 and 05.30, when she'd be in the care of Nicola Dennison, and she desaturated to 30 and then 50 -- or possibly 50 and then 30 depending on how we read the notes.
The second pair of desaturations were when she was in the care of Mary Griffith and that was at 6.56 and 7.24. Those were low desaturations associated with clenching of hands and stiff limbs and her eyes deviated to the left, if you recall. So it's the two pairs of events and the allegation relates to the second.
Dr Evans didn't identify a natural process for this, no particular harm mechanism was identified, but no natural process he said. Dr Bohin came to no major conclusion other than these were serious and unexpected deteriorations but she did not identify a natural explanation. So that's the state of the evidence on the experts.
We can start with the picture, ladies and gentlemen, we get of the Countess of Chester when it came to dealing with this situation with [Baby J] from [Mother of Baby J], who was [Baby J]'s mother. You'll remember [Baby J] had two stomas because she had to have it arranged that faeces, that would otherwise have travelled through her gut, could be recycled outside and it was an unusual situation, not the sort of thing that the Countess of Chester neonatal unit would usually deal with.
[Mother of Baby J] gave evidence about how [Baby J] was looked after and, when you bear in mind the prosecution position that Ms Letby is wrong to say this presented particular difficulties, you will want to keep in mind the evidence of [Mother of Baby J], who can be considered to be a fairly neutral witness on this topic.
Because [Baby J] had been looked after at Alder Hey at the time of her surgery and after her birth when it was apparent what problems she was encountering and [Mother of Baby J] was able to draw comparisons between the Countess of Chester and Alder Hey and it did not reflect at all well on the Countess of Chester. She gave evidence on 10 February and she told us about things like this.
She and her husband had to spend time dealing with the stomas when they were at the Countess of Chester in a way they didn't have to at Alder Hey. And the staff at the Countess relied on them to deal with [Baby J]'s day-to-day care when they were there. [Mother of Baby J] felt that at the Countess of Chester her questions were unwelcome in a way that she was unused to after being at Alder Hey. And when I asked he what she meant by that, she said it felt like, on occasions, the staff did not take her or her husband's concerns seriously when they raised them. She said that Alder Hey were extremely professional in the way they approached the stoma procedure. She said that as a contrast, ladies and gentlemen, to how things were done at the Countess of Chester:
"They were organised and everything ran smoothly with the stomas at Alder Hey."
By contrast she said staff at the Countess of Chester did not have the same confidence and ability when it came to the stoma bags. And she agreed with what she told the police in her statement, which was put to her, that:
"In hindsight I don't think the Countess of Chester was properly geared up or prepared for the level of care needed to deal with [Baby J] and her stomas and colostomy bag and recycling of faeces."
That is from [Baby J]'s mother, not just something that Ms Letby is saying.
She added that she didn't think the Countess of Chester had the resources or the expertise or the time to commit to [Baby J]'s needs and it's important -- this relates not just to the post-27 November incident, this is a general impression. When we say that the Countess of Chester was receiving too many babies at too high a level of acuity, we say that on the basis of evidence like this, ladies and gentlemen.
There were issues with weight gain and [Mother of Baby J] told us that weight gain was a problem and she complained about that and her complaints were not taken seriously. There were issues, we say, with infection and [Mother of Baby J] described an incident when she arrived at the hospital to find [Baby J] wrapped in a towel that was covered in faeces and they called a meeting with the consultant. And she talked about another time when she complained about the infection risk that would be created if [Baby J] was being bathed in the way the NNU wanted and she said her concerns were met with what she described as "pushback".
It's a relatively brief account from a mother of one of the children in the case of her experience at the Countess of Chester, but it is a direct contrast between there and a unit at Alder Hey that was able to deal with the complexities of [Baby J]'s condition. So it's no good pointing to the BAPM guidelines and saying: well, here we are, a band 4 can deal with this adequately. Band 4 nurses, as other nurses are, are very hard-working and very flexible. Very. But if the problem is greater than they can deal with, we end up with situations like this.
Dealing with the stoma bags was a medical condition that was unusual for the neonatal unit. Mary Griffith said it was unusual to be dealing with the stomas and she had been there and working there a very long time and she's a very experienced nurse. Even John Gibbs, when he gave evidence on 13 February, confessed it was a challenge managing [Baby J]'s stomas, which was done mainly by the nurses. And a challenge because they rarely had babies on the unit with a stoma requiring recycling of feeds. It's not clear that the BAPM guidelines are actually talking about that.
As for Nicola Dennison, who is the band 4 nurse who was dealing with [Baby J] on this night, what she said on 14 February was:
"She was a nice little baby. She was lively. She was alert, she was engaging. She also had medical concerns which were unusual for our unit: she had stomas, she had a Broviac line. And as a band 4 it was unusual for us to look after that but she was a well baby going home with those medical conditions, so at that point almost being ready for home."
In fairness to Nurse Dennison, you have it right from her there that this is unusual.
Let's turn to the actual allegations. I dealt with that as background because, first of all, it casts a light on the Countess of Chester neonatal unit and because it also casts a light on the position [Baby J] was in when we look at the collapses she experienced.
With this count, ladies and gentlemen, if it was needed, we now have evidence beyond debate that serious desaturations can come out of nowhere. And we have that because we have those first two at about 4.40 and 05.03 that are not and cannot be blamed on Nurse Letby. We have had months of people saying, yes, neonates can deteriorate suddenly and unexpectedly, and then debating with us or disputing with us in a given case that that is what happened on that occasion. And yet we definitely have it with [Baby J]: a well baby generally, in nursery 4, due to go home and out of nowhere, not something that can be blamed on Ms Letby, she goes and desaturates to 30 and 50, whichever way this goes, and we've seen that on Nurse Dennison's notes. We see it in the records of Dr Verghese, who I will deal with in a moment, and it's recorded on the apnoea and brady chart. It's there.
Dr Verghese suggested that he'd considered whether the first -- whether this first one was a false desaturation. He's not saying it was, it's just something he considered. Extraordinary, really, after months of evidence this is the first time that came up. But we can put that to one side because Nurse Dennison is very experienced and she knows what she's talking about and we've seen other occasions when the nurses have fixed the monitors. This wasn't that problem.
She had just finished feeding [Baby J] at the time, she's very experienced, she described [Baby J] being pale and mottled -- so this isn't false, this is how she was -- and she required breathing support, which is one of the things Dr Verghese agreed is consistent with a genuine desaturation.
Given the fact she'd been fed on other occasions and handled without false desaturations, this is plainly a real one and nobody thought otherwise, but I deal with that because it came up in passing.
Dr Gibbs said these first two were very significant drops in oxygen. He never regarded them as anything other than genuine. And it is important, ladies and gentlemen, when we look at this that that first serious desaturation around 4.40 happens as Nurse Dennison is looking after her. And it seems to be after she'd finished a feed. It comes out of nowhere and may well have been done to the 30s. Right? That is important in this case, not just on this count when we're looking at what happens with [Baby J], but when we consider the capacity of babies to deteriorate and it's there.
I confirmed with Dr Gibbs and Dr Brearey, on 13 February in the case of Dr Brearey, that these two events were unexpected and unexplained and as unexpected and as unexplained as the later two, and he said they were. Dr Brearey said he could identify no cause for these first two incidents. And you'll realise the reason I'm making a point of that: that is to do with something that has nothing to do with Ms Letby and yet we have very similar incidents, no apparent cause, unexpected and sudden. It happens.
It also means doesn't it, ladies and gentlemen, that we know, whatever the experts go on to say about there being no explanation for the events, that there was something wrong with [Baby J] that morning? We know that as a fact before we come to the events that are blamed on Ms Letby.
The experts give no explanation for the events when Ms Letby was there and that's used to support an allegation of harm. Nobody gives an explanation for the events when Ms Letby isn't being held responsible. You see the symmetry between it. We say the clear unfairness -- and you see the way in which the allegation comes into being once Ms Letby is there. When she's not there the same thing is not an allegation. When she is there it becomes an allegation.
The events at 6.56 and 7.25, ladies and gentlemen. We have the notes of Mary Griffith, who was caring for her. Desaturations down to the 30s and then down to the 70s. We say that whatever caused these, and undoubtedly something was wrong with [Baby J] that morning, Ms Letby did nothing to harm her on the evidence. There is no evidence of anything that could link to Ms Letby harming her.
Mary Griffith says she was there on the episodes and there is no evidence from her that Lucy Letby was there on either as they happened. She said she was in nursery 2 for the first of this second pair -- this is on 13 February she talked about this -- and was alerted when the alarm went off. She can't remember who else was there, let's not start guessing with the presumption of guilt, she can't remember, and on the 7.24 episode she was actually watching [Baby J] as the deterioration began.
There is no space for these allegations. I don't say that in a defiant way, it's just if we're looking at what we can be sure about, where is it? I asked her about what happened after the first part of this pair at 6.56 and Mary Griffith said:
"Answer: I didn't have many concerns about her [page 37, 13 February]. I was obviously watching her closely but she seemed to have stabilised.
"Question: Right. Did you remain with [Baby J] thereafter or did you leave the nursery for any reason?
"Answer: No, I stayed there because she'd had these dos and she was -- you know could go again and I stopped there until the day staff took over.
"Question: Was there another incident involving --
"Answer: Yes, there was.
"Question: All right. Did you make a note of that incident as well?
"Answer: Yes."
It could not be plainer: she is there watching over [Baby J] because of what happened. That doesn't prevent the allegation from being made, but it undermines it crucially.
She went on to describe the 7.40 incident and how Lucy Letby came into the room together with Caroline Oakley.
We say that in any ordinary situation that would have to leave somebody not guilty. You judge it. That's our submission. But that's it. We spent a lot of time investigating the possibilities of whether Ms Letby had moved from one nursery to another, a lot of hypotheticals going back over 7 years. That is the evidence from the nurse who was looking after her, consistent with her notes.
The experts didn't identify a cause. They say there isn't a medical cause. This case is about proving harm so you can be sure, ladies and gentlemen, and they don't identify specifically any harm and you can be sure of this, that if either of those two thought they could, they'd have a go at it.
We say it's hardly surprising none is identified because we can see the conditions in which [Baby J] was, we can see how she deteriorated twice in the earlier part of the morning, and then again, maybe a little more dramatically but following on from it, later on. And Ms Letby is in a position where she's charged with this. And keeping in mind the burden of proof, it does look like it's rather being left to her to explain something that she probably wasn't there for, she may well not know about, and the experts can't, and that shouldn't happen. We don't have to provide an explanation.
Dr Bohin regarded infection as very unlikely, although she couldn't rule it out. And we do observe it wouldn't be surprising if there was infection at work here given [Baby J]'s particular condition and what we know about the unit and the stomas.
There's a radiograph, ladies and gentlemen, at tile 226, I won't go there right now, but it's described on the commentary as having:
"Interstitial shadowing consistent with infection."
And you may or may not recall that when Dr Evans gave evidence on 14 February I asked him about blood swabs that had been recovered and the -- they didn't -- the blood swabs didn't identify a relevant bacteria, but a swab taken from the area of skin around the central venous line grew a bacteria called Klebsiella oxytoca. Dr Evans agreed that is capable of causing infection in vulnerable infants.
And on 14 February, I asked him about whether one could rule out infection and this is what he said at page 91:
"There are lots of complicated issues with regard to this little baby. We know she had a surgical procedure, she has a stoma in line and she's got a Broviac line, in other words a central line in place, so all of these and she's in a baby unit. So all of these markers place her at some kind of risk. That's why my opinion is quite ambivalent in this particular case. I've heard the evidence from yesterday that local doctors were satisfied that they did rule out infection. From my perspective, 5 years ago when I did this report, I wasn't so confident in ruling out infection. That's as far as I could go, really."
That's quite a concession from Dr Evans, you may agree, in the context of this case that he wasn't as confident as the treating doctors were in ruling out infection. That's probably as close to a concession as we're ever going to get in case from any of the medical experts. But he accepts that the bacteria recovered from the skin around the central line site was capable of causing infection in vulnerable infants.
Ladies and gentlemen, it doesn't take a great deal of time to deal with the case of [Baby J], and that's not said out of any disrespect to her or to you, but in this case there is such little detail, but the detail that there is is so clear, it's possible to deal with it in a fairly short period of time.
We have events that begin around 4.40, unexpected and serious, coming out of nowhere, and absolutely no basis and no suggestion Ms Letby is responsible for that; it happens with another nurse.
The experts cannot identify harm or a mechanism of harm in circumstances where one of them is ready to accept he cannot rule out infection. This is not attempted murder, we say, but it does go to show how empty the fact of being accused by the prosecution can be because they say this is attempted murder as much as they do everything else and that is what we're dealing with.
[Redacted]
Before we come to the break, perhaps we can start the next count, my Lord.
MR JUSTICE GOSS: Certainly.
MR MYERS: If I can just start with count 15, ladies and gentlemen, which is [Baby L]. This is the second, isn't it, of the two insulin counts we're looking at, as they're put? The first is [Baby H] on count 6.
[Baby L], born on 8 April 2016 at 10.13. Twin 1. Gestation, 33 weeks and 2 days. Weight, 1.465 kilograms.
Count 15 is based upon this, ladies and gentlemen: that there was low blood sugar recorded for [Baby L] over a period of about 53 hours; it is Professor Hindmarsh in particular who identified that as the likely period. That period runs from 10 am on 9 April -- or can be said to begin from 10 am on 9 April to 15.00 or thereabouts on the 11th.
A blood sample taken between 12 noon and 15.45, and there's a debate about the time it was taken, on 9 April brought back this result: insulin, 1,099 picomoles per litre; C-peptide, 264 picomoles per litre. So again, that ratio would indicate, if accurate, that that is artificial insulin, exogenously introduced at the level of 1,099 picomoles per litre.
Before we actually come just to look at the detail of the charge, could I just swing us back into the real world and real life outside the unit at this point. It's easy here to look at everything as if it's happening in absolute isolation.
Real life, as in life outside work, was going on for Ms Letby, and everybody, throughout the whole time on this indictment. I'd like just to return to this, that we have a young woman, she says committed to her profession, everyone at the time took the view committed to her profession, and looking after [Babies L & M] as she looked after dozens or hundreds of babies over this period. Alongside that, she was seeing friends, going on holiday, going out, going to salsa, she had a win on the Grand National. Whatever stereotypes have been planted in your mind, that is not who she was then or how she was living. So we say it does matter to keep in mind, when you're hearing these dreadful allegations and the evidence on which they are brought, the person they are aimed at and what her life was.
And although the allegation is that she was excited or captivated or motivated, interested, in the things which we are dealing with in this case, we say that actually at this time it's very clear what her principal concern was and that would have been the fact she was moving house at this point.
If you look at a couple of the texts from the [Baby L] sequence, the messages, you see what her mind is occupied with. Could we go to tile 48, please? This is Lucy Letby on 8 April, 18.15, to [Nurse E]:
"Unpacking. Stuff everywhere lol. May do extra shift over weekend."
May we move forwards in these to tile 57, please. Sophie Ellis now:
"How's the house, pal?"
Next tile, please, Lucy Letby:
"Feels a bit weird having a whole house [because she had been living in the accommodation before this] but it's good, thanks, although stuff everywhere as moved in properly on Tuesday and been at work Wednesday, Thursday and today. Doing tomorrow as an extra so I will see you tomorrow night. Won't be such an early start for you now, back in Chester. Did I hear your grandparents are coming to see you?"
Just pausing there, there are lots of texts that we say, or messages, that have been taken out of the whole run of her messaging and you can decide what they go to show, whether they're taken out of context, whether they prove anything that's significant. But equally, this is the stuff that's on her mind at the time.
Tile 59, please, from, Sophie Ellis to Lucy Letby:
"Yeah, I bet it does. It'll feel more homely once you've sorted everything out. Jeez, 4 long days in a row. Are you okay?"
Remember what we heard about the fact Ms Letby was someone who was prevailed upon to work a lot? We had the agreed evidence of [Nurse A] that it wasn't really that surprising she was there when sick children were there because that's how flexible she was and what she was trained for.
Sophie Ellis:
"I know, yeah, and I don't have to pay for petrol. It's cost me a fortune. Yeah, they are [emojis]. Haven't seen them for a while. What's the unit like?"
These messages, where she's talking about the unit or children, are part of a two-way conversation with other nurses, as you'd expect of someone working in this environment, interspersed, sometimes at length, with things that relate to her life outside the unit. And we can see what must have been a major concern for her at this time.
So ladies and gentlemen, this is what's going on in her life at this point and she is occupied with that and, we say, not with trying to kill -- it sounds awful but this is the allegation -- trying to kill a pair of twins, who, as it happens, she cared for over a period of weeks and did so without any criticism that could be made of her, apart from the events, as we come to them in this trial, of the 9th and 10 April, when we say what was occupying her, as much if not more than anything else, was the move to new house.
Perhaps we can come and look at the detail, my Lord, after a break.
MR JUSTICE GOSS: We can do. You'll then have a slot to occupy about 1 hour and a quarters, because I'm condensing the lunch break and I don't want too long a slot after lunch because it's a difficult time in any event. So I think it might help, while we are all still fresher, just to do another 10 minutes or so.
MR MYERS: I agree.
When we look now at events with this allegation, ladies and gentlemen, could I ask you, like we had in the case of [Baby H], to get the chart, the blood sugar chart, which is behind divider 6 in jury bundle 1 so you can make reference to it, if you need to, as we go along.
We will look at this at one point just to track the bag changes, but by all means you can refer to it as we go along as a guide.
When we looked yesterday at the case of [Baby H] on count 6, I made some general observations about the insulin counts and the defence's position on them and they apply in just the same way but I am not going to repeat all of them now because I am sure you remember them and they apply across both counts. In particular we urge you not to use these as a shortcut to conviction, which is, we suggest, the way they've been presented. It's a matter for you. Ultimately your approach to the evidence is a matter for you so long as it's within the directions given by his Lordship, but we suggest there is a lot to look at here as there is on other counts and it's important to consider every count separately because there are some very distinct features to different counts on this indictment.
It's not accepted that Ms Letby has committed this offence. It's not accepted that the evidence takes you there without proper consideration and consideration of its shortcomings, and we say they forestall, they cut out guilt, but that's a matter for you.
We say the evidence must do two things, just like we did in the case of [Baby H]. First of all, they must satisfy you, so you are sure, that the sampling and testing has been done properly and accurately. And it must satisfy you, so you are sure, that Ms Letby deliberately introduced insulin with intent to kill.
And you'll remember what I said yesterday, that it's not always going to be possible for someone to explain everything that happened, it's really not, that's why the law and the system works in the way that it does.
Therefore what's crucial isn't to guess or to speculate, but to see if you, if we, are sure that, whatever has happened, Ms Letby has done that with that intent. And if there are things that make you unsure, then we don't have to go further and start trying to guess, what's the alternative, what could have happened, it's whether we are sure about it that matters. Because it may not be possible to say, but that that doesn't make somebody guilty. You know that, for reasons that are inevitable, because of the processing system, the samples aren't tested, so for that reason we look at the integrity of the process, recognising, as we said frankly yesterday, ladies and gentlemen, that you may well reach the point that you decide: well, whatever happened, we're satisfied with the analysis. But we still ask you just to look at factors that may have a bearing on that since you have to be sure of it. And there are two in the case of [Baby L] that we draw to your attention.
One of them is how the sample was handled and processed, and that is something we looked at in the evidence, if you remember, with the technicians. That's why we looked at it.
And the other matter, rather like in the case of [Baby F], is the condition here of [Baby L] and how consistent that is with what we might expect to have happened for such a high insulin reading.
So as to the handling of the sample, first of, all we know from Dr Anna Milan it should be in the lab at the hospital within half an hour, where it is spun and cooled. That's the guideline. On any view, whether the sample is taken at 12 noon or 15.45, it falls well outside that guideline because, as I'll remind you, it wasn't actually received until some time after 6 pm. On any view.
Now we recognise -- right at the beginning we recognise that, whatever the situation, the evidence, and Dr Milan was clear about this, is if there has been any deterioration in the sample because of delay, that probably would only serve to reduce the level of insulin. So the argument is, there we are, what are you complaining about, defence? It could only be better for you is really what that says.
You will have noticed that the prosecution were anxious to minimise, perhaps naturally, the period of delay in their closing submissions to you, and lest there be any uncertainty as to the way I described this yesterday, the defence say this sample was taken at 12 noon. The prosecution say they put the time nearer to 15.45, which of course reduces the delay.
We know on any event there was a delay because if we just look at the results sheet, which is at tile 190, please. If we look at the top you can see it says received. If we look down, you've got the top row and then the next row where you can see Dr Gibbs' name and then you've got a row below the second line. And in the middle we can see "RECV". Can we see? If we move to the right.
And Emma Lewis, who's the biochemist from the hospital, on 24 February, explained that is "received 18.26". The 8 isn't very clear. That's when it's received; that's page 16, 24 February.
So there's a delay, we know there's a delay, of some sort. The defence say nearer to 6 hours because it was taken at 12 noon. The prosecution preference is it was taken at 15.45, the sample. Therefore they say about a 2.5-hour delay, and we are told it doesn't really matter.
We note the prosecution spent some time dealing with this and when they were talking about it in submissions to you they said this, ladies and gentlemen, in their closing address last week, 19 June:
"We suggest that the audit trail for the blood sample is incontrovertible: it was [Baby L]'s blood which was analysed. After all, who else on the NNU could it have been from?"
To which we say, well, we don't know, although that might have struck you as a thought-provoking comment:
"It was [Baby L]'s blood which was analysed. After all, who else on the NNU could it have been from?"
Well, whatever the concerns of the prosecution, as a matter of fact and record we maintain it is 12 noon when the sample was taken and we maintain that for the following reasons and I will just set them out for you.
First of all, the evidence of their own witness, Dr Anthony Ukoh, on 15 February was that this sample was taken at 12 noon. He's the doctor. That's what he said. His note at the time he did the review out of which the decision to take the sample came -- his note which led to the sample being taken is at tile 101.
Just have a look at this, please. We can see 10.20 hours is when he was doing the review of [Baby L]. It was after this that he took the decision there should be a sample. If we scroll down to the second page it seems to be identified here in the plan. It's got, "For BM checks", blood sugar checks. Okay? "For blood sugar checks."
It's after this -- this is what precipitates the taking of a sample. We just identify it because Dr Ukoh says the sample is at 12, his note is certainly in advance of that. And we also know it was 12 because that was the note he wrote for himself on the back of the results sheet, which is at tile 111, so let's look at that next, please, Mr Murphy.
That's a helpful way of looking at this. Can you see, ladies and gentlemen, it's the same sheet, but you have got the back and front and PTO on it. You've got -- at the top, there we are:
"9 April 2016, hypo screen results, 12 noon."
12 noon, he explained, is a note made as to when the sample was taken. That's his evidence. That's the witness. So we say, straightaway, it's not much use trying to say it's 15.45, this is 12 noon.
The 15.45, in case you're wondering, we will be coming back to this sheet, I apologise for moving around, but let me just explain where 15.45 comes in. If we go to tile 190, please, which is the analysis of results sheet, if we look:
"Entered."
(Pause)
It's in paper, I'm grateful, 18025, but what I'm looking for is here. Can you see where it says, "Entered", ladies and gentlemen? I wanted to confirm this is right, and we've got:
"15.45, 9 April 2016."
Do you see the time there? Thank you, Mr Murphy, the cursor's there.
Emma Lewis, the biochemist, on 24 February, explained it had been said by the prosecution this is when the test was ordered on 19 June. Emma Lewis explained in evidence:
"I believe that is the time when the request was actually made."
In other words, when the request for analysis was made. That doesn't tell us the time the sample was taken, that's just when the request goes in for analysis. It's not a record of the sample being taken. That's why I've explained that. It's a record of when the request is made. So if a sample's been taken and is left lying around for some reason, that's not going to be entered until someone gets round to putting the request in. That's the point. That's why there's been a delay. It's taken at 12 and there was a delay, as Mary Griffith said, in podding it, she said, because of what happened with [Baby M].
We say the delay is lengthier than that. But so we're quite clear, the evidence on that 15.45 from Emma Lewis is that's the time the request is made. It does not follow that's the time the sample is taken.
As for the results sheet which we looked at at 111 -- I'm going to ask to go back to that, please -- it was said that a number of these -- the last two weren't verified until 11 April, so how could this be 9 April? Well, you can see, ladies and gentlemen, from the left-hand side, this is a sheet where material is being entered into it as we go along. Look at the left-hand side, there's dates when different results came in.
Just look at the -- Mr Murphy, the top row, please, on the left-hand side. Can you see how different dates have been entered and different results as you go along on the same piece of paper? It's not all at once. And the results came in, it seems, on three different dates.
And what Dr Ukoh has done is started to put them in or made a record, as we see in the handwritten note at 12 noon on 9 April, and put in the material there. And in fact if we go now to tile 190, you'll see that some of these results did come in on 9 April. If we scroll down a bit, please. There we are. That shows it. Do you see there were actually three dates?
9 April is when the first five come in. 11 April, the next two, and the insulin ones were on the 14th. The reason we know that's the order is because, if we just go to the next page, and this was pretty awful to try and look through, so if you need to look at this, ladies and gentlemen, it is better to go to the exhibit in the paper bundle.
If we scroll down, can you see the first ones: sodium, potassium, bicarb, urea and so on. We have "entered 9 April" there and then "verified 9 April" if you go right of it. Do you see 9 April? The first five are 9 April. Then we come down to cortisol and growth hormone, verified on the 11th. There we are. There's the cortisol and the growth hormone below that, please, Mr Murphy. There we are, verified on the 11th.
Can we scroll down to see what's on the 14th? It's the insulin and the C-pep that came in on the 14th. We did look at this in evidence. So we've got three different dates. So there were results that came in on the 9th and, if we now go back to that result sheet, tile 111, you can see now, we've got in results that did come in on 9 April, looking at the right-hand side, and as it happens the cortisol and the growth hormone were later, on the 11th, and they've been asterisked.
The reason I have spent time with that is there are results coming in on the 9th, for which there would have been a reason to make a note on the 9th. It's not that they all came in later.
So the evidence, ladies and gentlemen, that the sample was taken at 12 noon is clear. 15.45 simply comes from the sheet we saw -- we can take those down, please, Mr Murphy -- with the date that the request for the analysis was made, combined, I suppose, with Mary Griffith saying that she took the bloods, she doesn't know when, but there was a delay in podding them because of what happened with [Baby M].
It may be that when all is said and done it causes you no concern that a sample that should be frozen or chilled and spun within about half an hour wasn't, we say, for 6 hours, or, even with the prosecution's assessment, at least a couple of hours. And we have acknowledged, we trust reasonably, how the experts have said this would make no difference. But it's been a point of contention. The prosecution have sought to establish it's 15.45, maybe in response to the defence questioning, but we say that there is delay in processing the sample and it's one thing to keep in mind when you come to assess how safe it is to rely upon the results.
The second aspect there is the condition of [Baby L], so perhaps I can deal with this before we take the break. Obviously, there was nothing wrong with him at all at the time. It's a similar situation to that with [Baby H] but even more striking because, apart from the apparently low blood sugar itself, there seems to be absolutely no sign of any adverse effect upon [Baby L], which we say is, as we said in the case of [Baby F], extraordinary given what we are told about the potential effects of high concentrations of insulin.
We ask how is this evidence of poisoning? Dr Gibbs described on 16 February how [Baby L] was, even at the height of this apparently insulin-heavy period, was:
"Lively, pink and appeared to be in good condition."
He was receiving dextrose, we know that, but still:
"Lively, pink and appeared to be in good condition. The low blood sugar was consistent, we believed at the time, with a growth-retarded infant."
There is another, we say, potentially significant anomaly and this isn't just picking things out to try and create issues, this is something which you may accept is directly on the point of the blood glucose, because when the analysis was performed the results brought back a reading of 2.8 for blood glucose, which is relatively healthy. Do you remember that? 2.8. I'm going to deal with the explanation for that and then look at what we have. 2.8, we observe, would be consistent with [Baby L] being fine. We say it would be potentially inconsistent with the type of insulin/C-peptide ratio we have.
Professor Hindmarsh was asked about this by the prosecution. He said the reason that the blood glucose was 2.8 is that this was from a plasma rather than a heel prick. So it's come out of the blood rather than just the usual heel prick which we have. A heel prick would be 10 to 15% lower. I'm going to unravel this in a moment. So a heel prick, which is what we normally get on the blood gas chart, would be about 2.4. Could we put up tile 191, please, Mr Murphy?
This is the analysis of blood glucose from the sample that was taken. Can you see, ladies and gentlemen, "Glucose, 2.8"? That would be we submit, completely -- that doesn't -- that's a relatively healthy reading and we've seen where the readings are.
Professor Hindmarsh said, yes, well, that will be higher, a heel prick would be 10 to 15% lower. So that would be about 2.4, okay? 2.4.
Now this is where we have got the table. From the heel prick, at the time the sample was taken, it should be about 2.4, from what Professor Hindmarsh says, but if we look at the table now -- let's take time to get our eyes in on the table. If we go, first of all -- we'll look at both times, but let's go first of all to about 12 noon, which is when we say the sample was taken, so we're looking at 9 April, 12 noon.
At that time, with 10% glucose, we have a blood sugar reading of 1.6. Do you see that, ladies and gentlemen? So we need to have the chart there: 12 noon, 1.6. So around that time, if the blood was taken there, that should be saying 2.4, not 1.6, because if the blood sample was taken then and it's 2.8, and if we make a 10 to 15% allowance for a heel prick, that would be 2.4. This isn't 2.4. Whatever lies behind this, the readings we're getting are lower than it should have been for what that sample is there.
And even if we look at or about 15.45, which is the bottom of the page, there's no blood gas reading at that point but it's bracketed by 2. At 15.00 you can see it's 1.5; do you see that ladies and gentlemen? If we go over the page to 16.00, it's 1.5 there as well. 15.00 is 1.5, 16.00 is 1.5 at a time when, even if the prosecution are right and the sample was taken at 15.45 and this is the blood glucose from the analysis, it should be 2.4 here. Same thing.
Whenever the sample was taken, making adjustment for the lab reading, it should be 2.4, we say, rather than the lower readings if this is right. But we have far lower readings than that, which is why we say it does raise a question about the accuracy of the heel pricks for blood sugar readings. It must do because that should be higher.
When Dr Gibbs was questioned by me about the 2.8 on 16 February he said 2.8 would be an acceptable level but he thought he had a way of explaining that. He said the evidence was that since [Baby L] was receiving a relatively high volume of 12.5% glucose at this stage, 2.8 was still abnormally low, so he was saying, 12.5% glucose, too low. Well, you can see, actually, ladies and gentlemen, straightaway if you look at the chart, that he's wrong about that. Whichever time it was taken, [Baby L] was not receiving 12.5% glucose and he didn't receive that until 16.30. So that explanation does not account for a higher blood glucose level than we might expect.
And high-volume infusion via the long line of glucose, which would be more potent, didn't happen until [Dr A] put in the long line some time after 1 am on the 10th, and you can see on the 10th when the long line goes in: 01.30.
Because we cannot conduct our analysis, because Ms Letby says she did not do this, we have to look closely at this to see if we can be sure about it, and I'm endeavouring to do so, ladies and gentlemen, in a way that take account of the fact that, at face value, this analysis appears to be sound. And I may be appearing to select fairly small points to consider with it, I recognise that, but we submit they are still significant potentially. And we do not have an explanation ultimately for why the blood glucose reading on this chart, at the time we've just been looking at, is as low as it is when the analysis was 2.8 and, correcting it for the type of heel pricks we normally get, would bring it to 2.4 or thereabouts. And when we keep that in mind with the fact that [Baby L] appeared to be as well as he was over the whole period that we're looking at here.
My Lord, perhaps that's a point at which we can stop.
MR JUSTICE GOSS: Certainly. We'll have a ten-minute break then, members of the jury.
(In the absence of the jury)
MR JOHNSON: I would never interrupt my learned friend whilst he's speaking, but this is clearly an important point. It may be he's chosen not to deal with this issue, but the explanation given in evidence was the bolus at 15.40.
MR JUSTICE GOSS: Yes, right. At the very bottom of first page of the blood sugar readings. All right. Thank you.
(12.05 pm)
(A short break)
(12.15 pm)
MR MYERS: My Lord, I should say I'm grateful to Mr Johnson for raising that matter and it is something that I omitted to deal with. What we say is pretty discrete on it, but perhaps I ought to while we are dealing with it now. I will do that.
MR JUSTICE GOSS: It's entirely up to you, Mr Myers. If you don't, I will be pointing out to the jury what the evidence is, which I shall be doing in any event.
MR MYERS: I know your Lordship will, but I'm grateful for the matter having been pointed out. It's something that I should deal with or should have dealt with.
MR JUSTICE GOSS: It's all right, you deal with it.
MR MYERS: I will, thank you.
(In the presence of the jury)
MR MYERS: Ladies and gentlemen, if we still have the table there, there's one matter I omitted to deal with and I'll take the opportunity to deal with it now before I finish with the table.
You'll recall this is something that was identified. At 15.40, can you see, ladies and gentlemen, it says:
"Bolus of 4.3ml 10% dextrose"?
This is at the bottom of the page for 9 April -- sorry, I should have said where we are. If we look on the chart, 9 April, 15.40, bottom of the first page. There's a dextrose bolus of 10% that was given.
The prosecution made, with Professor Hindmarsh, the observation that that may or does account for the 2.8 blood glucose reading, more dextrose put in, that's why the blood glucose was higher.
It's important I just say the following about that because there's three points we make with regard to that. First of all, straight off, if the sample was taken at 12 noon, that's no explanation, obviously, because a dextrose bolus being given at 15.40 makes no difference. So if, as we say, it's 12 noon the sample is taken, we have the difference between 2.8 and 1.6, which can't be accounted for.
Were you to find that you were satisfied it was taken at 15.45 or thereabouts, the question then is: what difference does this bolus make? We say the problem actually remains. If we look over the page at the 1.5 at 16.00, that is still too low, whatever's happened, for a reading of 2.8. It's still too low.
Our complaint is with what these figures are, that they are too low across the board, and in any event, if you look at the reading for 15.00, pre-the dextrose bolus, it's 1.5. And if you look at the reading for 16.00 after the dextrose bolus, it's 1.5. It's a little difficult to work out what effect that has had in fact and how those readings work because it remains low on either side of it and lower than it should be. But it's important that I give the position of the defence on that because that's something that was identified in the course of evidence.
Now, the next matter we were going to deal with, ladies and gentlemen, is that of the mechanism of delivery. So do keep the chart out because we'll be looking at it. What we say on this, bearing in mind how you have to be sure as to harm, is that when we come to look at what happens with the dextrose infusion bags -- and we say that on a sensible view Ms Letby simply cannot have interfered with them in the way alleged for this to be sustained against her unless we invent fairly artificial theories that don't reflect realistically what could have happened.
We know from Professor Hindmarsh the abnormal readings -- the first abnormal reading we have is that reading on the first page at 10 o'clock of 1.9. 10.00 hours. Therefore insulin has entered into the system at some point between the reading at midnight of 3.6 and that reading of 1.9.
You know the prosecution case is, well, Ms Letby's done that when she's come on duty maybe around about 9.30 or something like that, but it's within that period and it then continues according to Professor Hindmarsh for about 56 hours.
We know there are a number of bags that are changed throughout the course of this period. I am just going to remind you where we've identified them. The initial bag that was hung was at 12.00 hours on 8 April, so starting at the top, second row down, 12.00 hours on 8 April is bag 1. No one is suggesting there is insulin in that because, of course, what we have are reasonable readings for an infant who has hypoglycaemia, and no one is suggesting anything before midnight, so no insulin in that.
The next bag, there was some uncertainty about this, but we seem to have reached the position that round about midday a second bag did or may have done up. It seems to be, we're agreed, did, round about midday, bag 2, midday on 9 April.
If we go over the page to 16.30, ladies and gentlemen, a third bag, if we are up to three, is hung at about 16.30 and that's the one that was put there by Belinda Williamson, the bag that was put up at the time of [Baby M]'s collapse. And you know the evidence about the bag: she started again with a fresh bag, that's what she would expect to have done.
Next bag, ladies and gentlemen, so bag 4, is 2.30 to 3.00 on 10th April, or between 3.00 and 2.30 to 3.00 is when bag 4 goes in on 10 April.
There's another bag, it's on 11 April, and it's the bottom row where it says, "Started by Caroline Oakley/Samantha O'Brien".
So we're up to about five bags by that time and the period when Professor Hindmarsh is satisfied insulin has gone is at 15.00 hours on the last page, 15.00 on 11 April, which is where his lengthy period comes from, 50 plus hours, in the course of which there are a number of bag changes which Ms Letby is not involved in.
Let's consider now how realistic all of this is against what we have to be sure of or you have to be sure of. In setting the scene for their theory the prosecution began by pointing out how there had been an issue with [Baby L] being hypoglycaemic at the outset and that Ms Letby had made a point of questioning Dr Bhowmik, who was the doctor dealing with [Baby L], about the decision not to follow the hypoglycaemic pathway. You will remember there was an issue there that normally there's something called the hypoglycaemic pathway where they encourage the baby to have feeds, but the position with Dr Bhowmik was to go straight on to IV dextrose first. And the prosecution said this about that point:
"Nurse Davies [who was on duty with Ms Letby] said that the infusion therapy prescription sheet showed that she had checked what was being given to [Baby L], and in challenging Dr Bhowmik and documenting it, we suggest Lucy Letby was setting up an issue for [Baby L] in the sense she had identified an anomaly and had decided to use it as a cover to attack [Baby L]."
In other words, it's that theme that she says something about a child's condition as a kind of cover then for doing something about it. One of the prosecution themes, like talking about clotting issues in the aftermath of [Babies A & B], although we saw how that came about a couple of days ago.
We say the idea that somehow she picked on this and it's connected to cover for an attack with an intent to kill, which is the test, makes -- doesn't follow, doesn't make sense. Because [Baby L] being put on dextrose means that his blood sugars will be monitored closely and they should rise. And he's going to be a focus for observation on blood sugar, isn't he? He's going to be a focus. If Ms Letby is planning to do something with blood sugar, probably the thing -- if someone is planning to do something, you probably wouldn't bring up blood sugar as a focus with the doctors looking at it. You'd steer it away, you wouldn't raise it. They're saying it's done as cover, but given we know there are constant tests and the child is monitored, you're just talking about something that is going to be detected anyway. It doesn't create a cover at all unless you are going to do something truly dramatic and that didn't happen. [Baby L] was a well baby.
So we say, if we apply fair logic to this, in fact by talking about blood sugar or being involved in discussions about it, she's doing the exact opposite of what somebody would do who wanted to secretly interfere with it. This is drawing attention to what would be happening.
The next matter is the suggestion this happened at 9.30 in the morning or round about that time. We say there is a good deal of conjecture involved in that, a good deal of conjecture, too much. It's said by the prosecution: well, Mary Griffith was out of the room and you were on your own. First of all, at that time of the day in the unit, no one's going to be on their own anywhere for very long, we suggest. But just to have an idea of who is where and who is doing what around this period, I am going to ask Mr Murphy to help us with the neonatal review for [Babies L & M] and go, first of all, to page 2.
We can see here, ladies and gentlemen, how the nursery is set out with [Babies L & M] in nursery 1 with Mary Griffith, and Lucy Letby with two babies that she's looking after in there.
As for Mary Griffith's movements, if we go to page 3, this is the time we're looking at, we'll see at lines 34 to 39 where it is the prosecution is saying she's absent. This is where we have, in a way, a gap that is exploited for this round about 9.29 in the sense that -- or a time that's exploited. We have Mary Griffith and Angela McShane. We say that, given all we know, including how prescriptions are entered and the way the computers are used, this may be a precise time for when the entries are made. It isn't precise as to who is exactly where at the given period. It also covers a matter of minutes, but it's imprecise. We are not saying that goes to show the prosecution are wrong, it leaves it possible, doesn't it? It's possible. We recognise that. It's possible. But it very much leaves open an awful lot.
But in fact it's not only Mary Griffith who is in and about nursery 1 at this time, and remember what Belinda Williamson says about it being "as busy as a bus station" and the time of day this is and the comings and goings. We also have Dr Ukoh working in and around that area. If we look on this page -- let's start with line 33, it's on there.
Where's Dr Ukoh at the beginning of the period we're looking at? With GT, who's in nursery 1 at 9.15. Right? So this is the morning ward round. 9.15.
If we move forwards, please, page 4, line 48, we get to 9.45, so move on half an hour, with TSB still in nursery 1.
Now, someone may say, well, how can you say he's still in, he might have gone. He might have gone, he might have stayed. He's working his way, we're going to see, through the babies in that nursery. He's there at 9.15 with GP, he's there at 9.45 with TSB, and if we look at 10.20, at line 63, please, he's now actually dealing with [Baby L], as we know, because this is the point at which he identifies the need for the blood analysis.
So we have the three babies in that nursery in succession, over the period we are looking at, being dealt with by Dr Ukoh. We don't see him, you can look at the review, dealing with other babies in other nurseries.
We have heard a lot about circumstantial evidence and we say, in a way, this is powerful circumstantial, evidence for the defence, isn't it, because the reasonable inference to be drawn is that the person who is in there, or a person in that nursery over this period, is Dr Ukoh because he's dealing with the babies in there.
So the claim that we can say with some certainty that Lucy Letby is on her own in that nursery is speculation. It certainly doesn't follow from the evidence directly and if we're looking at what might follow indirectly, it's certainly not the only inference to be drawn, although we say it's chosen because it does fit, of course, with the theory of guilt.
Actually, from what we understand, Dr Ukoh is there dealing with a succession of children and people are coming and going. That's 9.30 and what we say about that.
There are other problems, ladies and gentlemen, with the allegation against Ms Letby in this way because, and we'll come to sticky insulin in a little bit, but putting that to one side for a moment, this involves Ms Letby putting insulin into every bag that is put up, doesn't it, this allegation, unless we have some very, very sticky insulin?
It certainly involves her, we've had the suggestion, nipping over and spiking the bag three times in the middle of everything. And you can weigh up literally how realistic that is: where it comes from, the syringe, visible to people, what if anyone asks what she is doing, what if anyone asks. That is, we say, a contrived and artificial theory designed to get round the problems by the serial bag changes.
You'll remember, ladies and gentlemen, dextrose is kept in nursery 1 so whoever's doing this would have to keep on getting insulin from somewhere and bringing it in. It's kept in a different place, isn't it? To say nothing of the business of somehow managing to add it to a bag that's already hanging. That's the first -- the sheer mechanics of what's being suggested, we submit to you, is unrealistic.
Next we have the likelihood that Belinda Williamson hung a fresh bag at 16.30. We know that Mary Griffith had been preparing a bag, but because of what happened with [Baby M], she stopped. We looked at this in evidence on 16 February. The likelihood is, the proper practice would be that that bag gets thrown out and a fresh dextrose bag is used.
That makes sense, doesn't it, because if a nurse is going to put his or her name to the medication or fluid given they have to be sure it's been made up correctly. We know that, that's proper. So how on earth, if that's happened, do we get insulin going in there?
Third, we say, as we said yesterday, this can't be explained by saying somebody has done a job lot of dextrose bags. Because no doubt that's where the web next goes to. We are going to go through each option and come up against a wall and it finds its way to an alternative suggestion.
Putting aside the lack of evidence of a wholescale quantity of bags having been done in this way, and we know there are about 15 bags of dextrose kept in there, it's commonly used, isn't it? How is Ms Letby going to predict the ones that are going to be used? How? Because these aren't specific to any baby and they're used frequently and it's certainly not the case that other babies have been identified, when people have gone back and looked at this, who appear to have had rogue bags of insulin coming out of this in this nursery or thereabouts, even though dextrose is relatively regularly used.
And the only possible explanation, if this is bags having been done beforehand, because of what we're told is a targeted attack, is you'd have to do the lot. You couldn't just do one or two and hope they were picked. So that can't be that way.
We know Ms Letby isn't there on the 10th or the 11th as this carries on, with at least up to two further bag changes. So where do we get to? We get to sticky insulin. Sticky insulin. A way of sticking the allegation together with sticky insulin.
This applies with giving sets were not changed and the evidence there is mixed. Mary Griffith, when she talked about the bag change that would have taken place at 16.30 on 16 February, seemed to be clear, a giving set would be changed. Belinda Williamson, on 16 February, had no idea if it would or wouldn't. And Ms Letby when she was cross-examined on 5 June said not changed every time, but accepted it could be changed. So it could be changed or it could stay the same, not changed every time.
There's a lot of bag changes over the 56 hours. And we say that to suggest that there is sufficient insulin from any one of them to keep sticking but to keep delivering is unlikely in the extreme. When Professor Hindmarsh was first asked questions about the topic on 24 February, and it was explained to him there was a question about whether or not giving sets were changed, but considering the position of sticky insulin his initial response was a smile and he said, "Yes, that's a tricky one now". "Yes, that's a tricky one now." And then I cross-examined him about that on 24 February and I was asking him whether it would ever run out or do we simply have an inexhaustible supply of sticky insulin for days? I said:
"Question: I'm going to ask, surely that must run out at some point? There can't be an inexhaustible supply of sticky insulin over a period of about a day and a half running through this, can there?"
And we say, with a wry smile, he said:
"Answer: That's correct.
"Question: Right. Is it the case that sticky insulin could be operative over a certain period potentially?
"Answer: I don't think anybody's actually done those kind of studies, to be honest. I think the answer is we simply don't know."
Then at the end of questioning him, we got to this point -- 24 February, page 97:
"Question: If we're working with the question of insulin being added in some way or getting in there in some way, would that be more consistent with it being added to the bags as we go along rather than an ever-diminishing supply of sticky insulin coming off the plastic?"
So which of these two is the more likely for what we have: an ever-diminishing supply of sticky insulin or this having to be spiked? He said:
"Answer: Yes. If you were just relying on the sticky insulin, you would have to probably come back a bit on your infusion rate because you would probably be overdoing it in parts. So yes.
"Question: So sticky insulin may account for some aspect of it but over time it would really require additional insulin being required as we go along to maintain those levels?
"Answer: That is what I would view as correct, yes."
So even if we run with the sticky insulin theory, which is sticky and tricky, Professor Hindmarsh accepted that we would still require additional insulin to maintain those levels. So that theory is weak -- I don't say that critically of Professor Hindmarsh -- but in any event it does not get away from the problem, as he said, that additional insulin is required. And for this allegation, however it is approached, to be sustained, it requires interference, really, we say, with each bag that is hanging. It is impossible to see how that could be done when there are so many bag changes from a random supply of bags and when Ms Letby simply wasn't there to do that. That is why we come back to saying this is a question of being sure, not, can we find a way, working with this and taking a prejudicial view, can we find a way of saying this could be guilt? It's a question of can we be sure. And in other words, are there things here which raise real questions -- we say not just real questions, they make it extremely unlikely unless, as we said yesterday, she has an ability to predict what's going to happen that gets beyond anything that you could expect anybody to have.
There is an amount of paperwork associated with [Babies L & M] and the points we have made generally in this case about paperwork applies in their cases generally and specifically. Ms Letby, you have heard, says that she accumulates paper, it's nothing to do with harm, and we say that is utterly sustainable given there is no direct link between the paper she accumulates and harm that is done. It's not exclusive to that, it doesn't follow any kind of pattern.
However the paperwork strikes you, ladies and gentlemen, we submit it has nothing to do with the intention that is being alleged here, whatever her reason for accumulating it. And whilst we recognise you are bound to want to look at it and weigh it up, we say that that's different from using it to speculate, to fill gaps in any shortcomings of the evidence that we have.
We say the key factor here and what we need to look at closely, given what you have to be sure of and his Lordship's directions, is whether the evidence can make you sure that she has done harm as alleged. We submit that she cannot physically be responsible for what has happened when we look at the whole period over which this has happened, not unless we are going to allow for the unlikelihood of repeated spikings of dextrose bags, maybe even when she wasn't there, which we say, respectfully, is absurd. And we keep in mind what Professor Hindmarsh has said, that even if sticky insulin could account for any of this, there would still have to be, to some degree, insulin added to maintain the levels we are dealing with.
We remind you also how unlikely it is, and illogical, that this is down to somebody trying to do the harm that is alleged with the intention that's alleged. We have this distinction in the figures of insulin between [Baby F] and [Baby L]. This appears to be about a quarter of what happened, in [Baby L]'s case, and that makes no sense at all, from 4,000-plus down to 1,099 picomoles. It's utterly inconsistent, when we look at that, with somebody with a deliberate intention to harm, however this has come about, and we need to -- that's why we ask you to look closely at all the evidence here because, as we have said from the beginning, there's nothing that's a done deal about this at all.
[Baby L], fortunately, was never anything other than a premature baby who did well -- this is in terms of medically -- given his prematurity and low birth weight. And after this period of 2 days when we have this analysis, but for that he was presented as a baby with hypoglycaemia, otherwise unremarkable in that sense, and his clinical course proceeded successfully over the following weeks until he was discharged on 3 May 2016, having been looked after by Ms Letby on various occasions over that period -- 16 April, 17 April, 24 April, 25 April -- and having been on the unit on many more occasions when the twins were there, all of which is utterly inconsistent with somebody who is intending to kill one of these twins by means of a targeted attack or any other way.
We'll look next, ladies and gentlemen, at [Baby M], [Baby L]'s twin. This is count 16 on this indictment. [Baby M], born on 8 April 2016 at 10.14, twin 2. 33 weeks and 2 days, a weight of 1.74 kilograms. The event we look at is 9 April at 16.02 when he had an episode when he was apnoeic, there's desaturation and bradycardia, and he required CPR for 25 minutes but made a rapid recovery.
This is a case where the experts, Dr Evans and Dr Bohin, propose a mechanism of harm. They say that that is by air embolus. We'll have a look at this.
Some basic facts about the situation when we come to [Baby M]. He is in nursery 1. We finally established that he had been put in a corner because the nursery was full, and we've heard how that isn't ideal because there's always meant to be space in the nursery, but he was there and we know that's how it was and he was close to his brother and in there on this day with Ms Letby and Mary Griffith, but of course whoever else comes and goes, it's a busy place.
One of the issues in [Baby M]'s case is that the collapse that he has is said to come out of nowhere. There are some indicators that he had some health issues, but certainly, we can all recognise, it's something that appears to be out of all proportion to how he presented when he had the collapse. We can see that and that's one of the points the prosecution point to.
We'll have a look at whether there were any indications in his condition to show that everything was not well, but before we do that, again we ask you to keep in mind the fact of a sudden or unexpected collapse, if that's what it is, is something that can happen, and we've just seen this morning, literally about an hour or so ago, how that happened in the case of [Baby J], although we recognise not as pronounced as what happens in the case of [Baby M], we know that. But certainly the fact that a collapse is sudden or unexpected does not of itself prove that harm was done.
Here again we have Ms Letby doing nothing with [Baby M] at the time he deteriorates. We'll look at the timings in a moment. She, from the descriptions we have, including that from Mary Griffith, was on the other side of the nursery. There are people about. She had participated in the giving of antibiotics to [Baby M] about 15 minutes before the collapse. That has become the focus, really, that's become the focus.
Dewi Evans and Sandie Bohin, we say, have done their best to work around this state of affairs by efforts to describe, at this point of the case, not how quickly air embolus works, but how slowly it can work, as the air takes its time to creep down the tube to coincide with a figure of, let's say, 15 minutes, which we say, ladies and gentlemen, is unbelievable. We're talking about very narrow tubing, about 0.4ml in volume. I'll come to the evidence shortly.
This is tubing that is designed to make sure that whatever goes in goes in quickly. It's the same tubing that's used to put adrenaline in when it gets to where the T-piece is, the three-way tap. It's meant to be quick. It's not meant to take 15 minutes; it's immediate.
The reality of the situation -- if we just put up tile 83, please, Mr Murphy, to see how the nursery was set up this day. I think we saw it earlier under a -- this is the [Baby M] sequence, thank you. This is a busy day. Okay? It's really busy and you can picture the scene with all the types of people who would be there, now we're familiar with how this unit is. For all that Ms Letby's focus is alleged to be on doing harm, she actually had a job to do. We know she did that, in the eyes of people around her, excellently, competently. She had issues of her own at work to deal with. We looked in evidence about how the baby GT had been keeping her busy. She had work to do. It wasn't an idle time. And not much time to interfere with air emboluses elsewhere as this takes place.
A lot has been made of Ms Letby's involvement in the care of [Baby M], including the delivery of the prescription, the antibiotics at about 15.45. It's important, isn't it, to ask whether that is significant when we look at the way business is being done on the nursery that day. We say it's absolutely not. She's been, as usual, picked out for something that is utterly conventional and normal for the nurses on that nursery. And as I've said before, you certainly don't have to take my word for it, I'd ask you to look at the evidence.
So we're going to go to the neonatal review and keep in mind how Ms Letby is being identified for assisting on one occasion -- on one occasion -- at 15.45, we say plucked out artificially when we know nurses assist in that way, and that's followed by utterly artificial contortions by the experts to explain how a slow-moving air embolus can work, just to try and get round the timings, because 15.45, collapse at 16.02, it's about a 15-minute delay not the 1 or 2 'minutes we had at the beginning of the case.
So the neonatal review. Could we start at page 3, please? Thank you. Lines 25 to 32. This is earlier in the day now, between 9 o'clock and 9.11, and we have Ms Letby assisting Ashleigh Hudson with babies. Certainly not all in nursery 1. Okay? Assisting with other children. Totally all right. Totally what happens.
Can we go next to look at lines 34 to 39, please, on page 3? Thank you. All right. We've seen this earlier, haven't we? Mary Griffith now assisting in another nursery round about these times, we don't know precisely when. We looked at this earlier: a nurse assisting another nurse. Totally conventional. Totally normal.
Go next, please, to page 5, lines 89 to 93. We now have Ms Letby, with assistance, caring for the child she's designated, TSB, with other people helping her, certainly Mary Griffith is in that nursery. So this way round is fine, this way round Mary Griffith is not a murderer or an attempted murderer, but it's different when Ms Letby does whatever everyone else is doing.
If we go next please to lines 123 and 124 on this page. Page 5. Down at the bottom, here -- now, if it said Lucy Letby rather than [Nurse B], we suggest this would be treated as a matter that would be highly suspicious because we have [Nurse B] coming to a nursery where she isn't a designated nurse for that child and looking after a child who has a collapse later that day. I wonder what would happen, I know we are not meant to speculate but you'll understand why I am saying this, if we had Lucy Letby there rather than [Nurse B]. [Nurse B] has actually gone away from the nursery where her designated baby is and has actually come to nursery 1 because that's actually, ladies and gentlemen, what happens.
And then if we go to page 6, lines 167 and 170, we've got Ms Letby and Mary Griffith, prescriptions with baby GT, who is one of the babies Ms Letby was looking after -- because that's what they do, ladies and gentlemen, they help one another.
So when we move forward to page 7, lines 209 and 210, please, 15.45, Ms Letby assisting Mary Griffith in the nursery where she's been working with [Baby M], let's start with that. But for these allegations, but for a presumption of guilt, there is absolutely nothing odd about that at all. It's what happens.
You can look at the whole 12 pages if you want to, you'll see her activity is consistent, we say, is consistent with what you see generally with nurses on the neonatal reviews.
Thank you, Mr Murphy. I'll move to the expert evidence with Dewi Evans and Sandie Bohin.
In their reports, and we asked some questions about this, one of the mechanisms considered was that [Baby M]'s collapse was as a result of airway obstruction. Airway obstruction, so smothering or doing something to a tube. In their evidence they had both dropped that and stayed just with air embolus, probably because it was increasingly obvious how absurd it was to suggest that Ms Letby is smothering [Baby M] in a nursery full of other medics and people coming and going. But certainly it seemed to be worth consideration in the reports. They stuck with air embolus. They say there's no medical cause to explain what happened in this case with [Baby M] and on that basis what's left is air embolus.
Sandie Bohin on 23 February said in evidence to the prosecution -- we say it reveals quite a bit about her thought process:
"I had to find some way to explain the collapse."
"I had to find some way." We say, no, you don't have to find some way. In medicine it's acceptable to say you cannot find a cause, that it's unascertained, you don't know, as has happened actually in some other occasions although, we submit, all too rarely. It's not acceptable to find something, in this case air embolus, because you feel that there's an obligation to do that.
As to the condition of [Baby M], can we put up Mary Griffith's notes, please, at tile 191, Mr Murphy? From the [Baby M] sequence. Sorry, tile 91. Just enlarge the Mary Griffith entry there. This is a note by Nurse Griffith at 8.11 on 9 April, "Initially fine".
At 12.15, if you look into the body of the note, about four or five lines down, the first sign of any problem:
"Stomach distended and increased work of breathing."
Now, these things, it seems, are treated as nothing wrong, no sign of anything. That's a sign of something, isn't it? It is in other cases. Mary Griffith went on a break, [Nurse B] took over. There's a slight rise in temperature during that period. And when Mary Griffith returned at 1 pm, she learnt that [Baby M]'s nasogastric tube had aspirated 5ml and there had been undigested milk. We can see it referred to there.
Later, around 2.30, 1.5ml of bile aspirate. The time of 2.30 came in the evidence but we can the reference here:
"1.5ml of bile-stained aspirate was produced."
And which we say is a surprise because a bile-stained aspirate may be a sign of a problem and is unexpected surely. It's a snapshot isn't it? But when we're being told there's nothing wrong, it's okay, it's fine, he's not actually. He's not. This isn't fine, that's why it's being recorded. People may say it's fine now, but it shouldn't have been fine then we say. Subtle signs. Sudden collapses. Unexpected. As a concept, witness after witness is ready to accept that. When we're faced with the reality of subtle signs in a neonate, in an intensive care unit, whatever their condition, on a neonatal unit, it seems to be that it doesn't apply any longer.
The doctor was called because of a concern, this is where we see, "Shown to reg", can you see?
"1.5ml and bile-stained. Shown to reg."
The registrar isn't named. That's okay in this case, it's not Ms Letby. But shown to the doctor. That is because of a concern.
But at 15.00 he was not doing as well as he was at 10.25 and Dr Ukoh had reviewed him and he's made nil by mouth.
Can you see, if we keep reading on, the aspirate is:
"... 1.5ml, bile-stained, shown to reg and baby put nil by mouth."
You may think that isn't a great direction of travel but if you do, you're at odds with witnesses who said there was nothing really wrong with him.
If we look at tile 6, which is the blood gas readings -- I'll ask Mr Murphy to put that up, please. If we look at 18.00 on 8 April, so the fourth line down, and then 9 April, 16.22, there's no blood gas readings taken actually. Maybe that's one of those things, but that is a period over which we have seen, during the course of Mary Griffith's shift, [Baby M] is deteriorating, actually, on the evidence.
When it's said by the experts, or the prosecution relying upon them, there's nothing wrong -- it was said at one point, "There's no need to have done a blood gas because there's nothing wrong", that's such a circular argument. How do you know there's nothing wrong unless you do the blood gas? He's certainly not doing as well as he was at the start of that day, from what we've seen, and ending up nil by mouth.
Even if we accept that, nevertheless what happens with [Baby M] just after 4 o'clock is still a significant escalation or deterioration, even with the problems beforehand. That does not come close to making Ms Letby guilty of anything. We have to be sure of a deliberate intention to kill and therefore we need to be clear about the mechanism and how that's meant to work. And that is where what is said about air embolus comes in.
That's what I'd move to next, but I'm just wondering, my Lord, whether this is the point to take a break because then we would continue after a shorter lunch break.
MR JUSTICE GOSS: Certainly. We'll resume then at 1.45, please, members of the jury.
(1.00 pm)
(The short adjournment)
(1.45 pm)
MR MYERS: Air embolus, ladies and gentlemen, the mechanism proposed by the experts in the case of [Baby M], Dewi Evans and Sandie Bohin. They pointed to, between the two of them, discolouration, the rapid onset and collapse of [Baby M], and sudden recovery after 30 minutes of resuscitation.
So we start with discolouration. Both of them ended up saying, in effect, that whether or not we can rely upon discolouration, of course, depends upon the evidence of Dr Jayaram because he is the sole witness to give significant evidence of discolouration, remembering that we're dealing with, now, 9 April 2016.
His notes, we don't need to put them up, are at tile 182. It is with a sense of déjà vu that you'll approach them and look in there for signs of discolouration and find none.
The description makes an appearance in his statement to the police 17 months later, having described it in interview to them shortly before that. But it's not the delay that matters before it comes out, it's the fact it's not in those notes, isn't it? We say it is unbelievable. There is no way he would fail to miss the discolouration if he saw it at the time. If we think through what he's described by this point, what he says he had seen with [Baby A] and heard about with [Baby B], what's been talked about on the unit, he and Dr Brearey with their suspicions starting as early as June 2015, what is meant to have happened with [Baby K] in February 2016, and here we are here with significant clinical findings that would go to support, given his description later, the type of lurid descriptions from that paper that he'd read before he went to the police, but after the time of [Baby A] and [Baby D] and these, it seems, he wrote them at the end of this period, in 2016, June 2016. But they're not there, even though he'd agreed by this time it was "all eyes on Letby".
Not a case of the penny dropping later by now, is it? Not by the time that we get to April 2016. If he saw them, he would be the first person to write them down. They are not there. Just like they are not there in his notes for [Baby A] on 8 June 2015 and not in that statement to the coroner on 24 July 2015. And we have no reference to discolouration in the notes for [Baby M] 10 months later.
That's why we say with that list you were handed you can approach it with a very good deal of scepticism. We say if the discolouration was there, it would have been in his notes and indeed he would have been the first person to have noted it and he didn't because it wasn't.
It would seem that by this time unusual rashes would be something of interest on the unit, whatever the reason for them. We know a number of people are present during [Baby M]'s collapse: [Nurse B], Mary Griffith, Belinda Williamson, Dr Ukoh. None of them give any description of any type of significant discolouration, nothing to support what Dr Jayaram says.
Mary Griffith actually said she saw no unusual marks or discolourations on the skin. She'd been looking after [Baby M] that day.
[Nurse B], you may think a pretty observant nurse, on the ball, she hasn't volunteered seeing anything unusual. And trying to suggest that [Baby M]'s in a corner and it's not well lit hardly counts, does it?
And Dr Ukoh, who was close to [Baby M] throughout, you may think could not have missed this if he was displaying the colourations that Dr Jayaram describes. And we've got his notes, Dr Ukoh's notes, of this incident at tile 149. I wonder if we could have a look at that, Mr Murphy.
Bearing in mind we've had descriptions from Dr Jayaram of the blotchiness/pinkness appearing and disappearing, Dr Ukoh is dealing with this, these are his notes later on, he's had time to process it. There's one particular description here from Dr Ukoh of [Baby M] and it is about the fourth line down:
"Pale ++."
There it is. I am not going to say any more about that. Thank you, Mr Murphy.
Rapid onset. A lot of things can be rapid with neonates like this.
Sudden recovery. We say, yes, he was resuscitated, he continued to be unwell and have apnoeas and desats over the day or so that followed but he did make a good recovery. We say at the same time, if he did, how do we have an air embolus that can cause a collapse like that that vanishes within 30 minutes if there can be such a good recovery? But there's a bigger problem we say -- actually, those are significant problems and the discolouration, we say, forms no basis for what is alleged, but there's a further problem: air embolus is fast-acting once it's in the bloodstream. We know it would be very, very rapid indeed.
Ms Letby and Mary Griffith administered antibiotics at 15.45 or thereabouts and that is the end of contact. There's nothing else that can be alleged in terms of going over and doing something. That's the time we start from and that has created, we say, a big problem for the prosecution and the experts because if air has gone into the bloodstream it should be very, very rapid, not 15 or 16 minutes.
So that is why we took a deviation in the evidence, if you remember, into what were called three-way taps and the empty spaces in the tubing. Remember we've got the valves, the little entry areas for the catheters to enter in. And we have the idea that an air embolus is put into a tube that is not much wider than a couple of strands of thick cotton and that then there would be a period of time for it to move along before it could enter the system.
We are not told how much air could cause this collapse. With Dr Evans we investigated this on 23 February. He had done some research into it. The empty space we're talking about is something like 0.35 to 0.4ml. That's tiny, a very narrow bore. If you were to inject 1, 2 or 3ml, which are the figures for lethality when we have been looking at dogs and rabbits, I think, with Dr Bohin, that would be immediate collapse because it's straight in, isn't it? It's bigger than the space it has to travel through, so it's straight in.
So the allegation is intending to kill. Somebody doing that isn't going to play around with minuscule quantities if that's what's going on, not if they've done it before, not if they know what they are doing; they'd put in enough to do the job.
Half a millilitre is in. Let's just think about this. How's somebody going to put such a tiny amount in, 0.4ml, that it takes -- and that seems to be what we're talking about, that T-piece, that it's going to take 15 minutes to go through it with the infusion going in. The idea is that it has come in and it is carried in on the infusion that's coming in. But that little space it's going to carry in on is about 0.35 to 0.4ml, so if you put anything in that's bigger than that, it's going to fill that space and go straight in anyway. And anything smaller than that is minuscule. How's someone going to measure that or know? How are they going to calculate this?
The maths don't really help with the experts because that space is so small, when we step back and think about this, even a minute quantity will be in rapidly which is what we have with adrenaline. That's the point. It's a completely artificial exercise, designed to try to get round the fact that that 15 minutes between Ms Letby assisting Ms Griffith and the collapse prevents the experts from being able to rely upon the air embolus theory in the way they would wish to. That is what was going on there and that is why we've had to contort our way through those tubes and it doesn't make sense even when we do that.
When it passed, we say with [Baby M] there were scans, he was discharged from hospital without concerns, fortunately.
We've heard about the scans, but there's no suggestion, thank goodness of any harm, any long-term consequences. So fortunately it seems neither [Baby L] nor [Baby M] appear to have suffered any long-term consequence for what is alleged, which we observe in passing with relief, but note is extraordinary for two alleged attempted murders with the methods that are said to have been used. But it's not extraordinary if that hasn't happened.
And dealing with [Baby M], in conclusion, we observe that the basis on which air embolus is brought is utterly unrealistic. It really hangs on a piece of evidence of discolouration that is incredible and contortions involving tubes and empty spaces that mathematically make no sense and were designed to deal with the problem of Ms Letby not being there, not doing anything at the time, the problem that causes. There is no proper basis, we say, to be sure there and very good basis not to be sure.
Ladies and gentlemen, I turn now to counts 17, 18 and 19, which are the counts concerning [Baby N]. [Baby N] was born on 2 June 2016 at 13.42. 34 weeks and 4 days' gestation, and 1.67 kilograms in weight.
He had haemophilia, his factor VIII levels were too low. The events that we deal with, 3 June, which is count 17, the first one, and that is at about 01.05 or 01.07 in the morning on 3 June. If you remember, [Baby N] was screaming or crying and he desaturated. He responded to facial oxygen within minutes, fortunately, and made a swift recovery.
Dr Evans says that is due to an air embolus. Dr Bohin says it's due to the infliction of a painful stimulus.
Let's look at the facts of each one as we go along rather than just giving a chronology there. The other event is 15 June. So we've got 3 June, the screaming episode, and then we have 15 June with the desaturation at 7.15 in the morning and then a further desaturation later that afternoon at 2.50, which was event -- count 19. But I'll come back to those in more detail as we go along.
Haemophilia. [Baby N] had haemophilia, which was unusual in the Countess of Chester Hospital. We know now from Professor Kinsey, who gave evidence on 7 March, that because of his haemophilia [Baby N] was more likely to suffer a bleed from trauma -- and that doesn't mean intentional harm, but from trauma, from physical contact, than babies who do not have that condition. And in the event of trauma, [Baby N] was more likely to bleed more profusely or heavily because the blood would not clot as it would in a baby without that type of haemophilia. We were told that on 7 March.
She was very clear and very firm about those points. And of course they are not insignificant when we consider a case where there was so much intubation that took place, we say. She explained that any process involving instrumentation had the potential to cause trauma and therefore bleeding and she said this in this way -- she was asked:
"The process of using a nasogastric tube or an orogastric tube [down the oesophagus], we know the difference between those procedures now. Is that capable ever of causing bleeding?"
Professor Kinsey said:
"I think any instrumentation, so ie putting something external into that area, has the potential for causing trauma and hence bleeding."
That's her evidence, page 61.
We say that becomes significant when we get to the events in this case, particular those on 15 June.
The Countess of Chester, you may think surprisingly, did not have factor VIII on birth and failed to make this arrangement even by 15 June, which is 2 weeks after [Baby N]'s arrival there. You may think it would have been obvious and sensible but it wasn't done.
Professor Kinsey said it would have been good practice for the unit to have factor VIII in stock even if it's not given to the baby from birth and you may think that is obvious, but that isn't what happened.
The allegation on 3 June at about 1.02, or whatever time we're looking at, probably when we look at the door swipe data you'll see 5 minutes past or 7 minutes past. This allegation Dr Bohin says physical trauma, some kind of pain; Dr Evans, an air embolus, by the time of his third report.
Was Ms Letby even there? What is the evidence of this? She wasn't in the nursery where this took place and we know that the incident must be some time just before 1.07 because if we look at tile 173 from the [Baby N] sequence 1, we've got Dr Loughnane's door swipe data. So she -- if we can go into that just to satisfy us all that's her coming into the unit, though it obviously is. Could we just click on the tile, Mr Murphy? Thank you. So labour ward, in, to neonatal, in. So she's coming in at 01.07.
No one is actually saying Ms Letby is there, nothing to put her there. Christopher Booth, who was the designated nurse, said that as a matter of practice when he went on his break he'd have asked a nurse in the nursery to look after [Baby N] and those nurses working there have been asked and none of them have a recollection that it's them, so we're in that territory. But at the same time nothing identifying that Ms Letby is there, and there's a question whether she was even on the unit, because if we look at tile 175, please, and we'd better go into it to check which way this is going and make sure I've got it right. There we are, maternity neonatal entrance doors, in. So this would appear to be she's coming in at 01.15. So whether she was even there at the time might be a moot point. It's not long after the time this is meant to happens, it's entirely possible she wasn't there.
The nature of this desaturation, why should it be an allegation? Could we put up please tile 174 which are Dr Loughnane's notes. Could we go into those, please? You see here she had come on at 01.07 and within a couple of minutes she is making her note. Thank you:
"1.10. Desat, unsettled, got upset. Looked mottled and dusky."
That's it ladies and gentlemen for discolouration:
"40% oxygen. Screaming."
That's a feature that is fastened upon:
"Sternal recession, poor trace on sats probe. Pink. Attempts to settle, crash bleeped away."
And he was settling by that point, though still crying. But that's it really. That's it. Nothing, we say, remarkable about this, which is why, as it happens, Dr Evans hadn't included it in his initial report as an air embolus, that only came in his third report on [Baby N].
No significant discolouration, nothing, and really a matter of minutes at its height and then pink and then we move on to the record of recovery. It has to be, we observe, without making light of it, but it must be one of the faster air emboluses in the history of air emboluses. It's literally whoosh, that's it. Don't forget we began by saying how catastrophic they could be. Dr Evans had begun by saying resuscitation was something that might fail or would fail and it generally does when we actually go to the literature. This is an extraordinary situation for an air embolus, not even the discolouration we have been asked to look for.
We say it's plainly not an air embolus and if we might be right about that, not only does that end the question of air embolus on this count, but it also goes to show how unreliable these diagnoses are from Dr Evans, in particular, and we say also from Dr Bohin.
What does Dr Bohin say about this? That it was the infliction of a painful stimulus. Pausing there, the allegation, and what you have to be sure of, is an intent to kill. Okay? That's not accepted at all, but is this anything like an intent to kill by the infliction of a painful stimulus?
[Baby N] was haemophiliac and at this point he is not receiving factor VIII. There is no blood, there is no sign of injury. Dr Bohin's response to that, as we say, is her way, which is to dismiss sometimes what those on the scene have done, and we have seen that, was to suggest that there had been no examination of his mouth, so as if a doctor missed it. No examination of his mouth? He's meant to be screaming the place down. If there's blood, and we have heard about Professor Kinsey and the blood that would flow or could flow, any blood, you might think the doctor would have spotted that.
That is Dr Bohin, in the moment, throwing that out there on 2 March as a way of trying to prop up what she is saying, in effect saying: I know it doesn't show any injury, doesn't show any blood, maybe the doctor missed it. Well, if [Baby N] was crying for upwards of 20 or 30 minutes, you're hardly going to miss blood from the mouth, are you? He's been examined and there's not a touch of that.
Again, not only does that fail to support the allegation on this count, but it also, we say, casts a light on the reliability and the credibility of a witness like Dr Bohin if she is ready to say things like that to shore up that theory. That is from the evidence and you can measure what I say against that, ladies and gentlemen.
On the question of screaming, Dr Evans said that there were a couple of papers that positively supported screaming as evidence of air embolism. When we went through those with Dr Evans in his evidence it became apparent that they deal with situations that are absolutely nothing like we're looking at here. [Baby N] recovered from crying within -- recovered from the episode within minutes. It plainly wasn't lethal, thank goodness, nothing close to it.
The other cases, the two cases, that Dr Evans talked about when relying upon crying were monumental in terms of what happened, with older babies being killed, in one case by a host of bubbles, and absolutely no similarity to what we're dealing with here, nothing at all like this, and lethal.
Those are such poor opinions, but not just poor because they're not well supported by the evidence, but poor because they are a good example of both these experts doing what we have put to them repeatedly, which is looking for ways to find mechanisms that prop up the allegation rather than sit with the facts. And you can judge that, but that's nowhere near to a properly made-out mechanism or an intent to kill.
We move forwards, ladies and gentlemen, to 15 June. It begins, for the purpose of the allegation, at 7.15 in the morning, count 18, when after a night -- and we'll look at the night in a moment -- of some issues with [Baby N], there was a profound desaturation at about the time that Ms Letby had come on to the unit. So of course, the link is made. We'll come to that. That was followed, some time after about 8.05 or 8.06 by attempts to intubate, and the identification of blood in the oropharynx, if you remember. That's with [Dr A].
As to that, Dr Evans found it difficult perhaps to know what to make of the collapse at 7.15, but said the bleeding is due to trauma in the upper airways. And Dr Bohin said this is down to most likely inflicted trauma to mouth or the oropharynx. That's what is said there.
Then there's a later event that day at 14.50, count 19, when there was a profound desaturation and 3ml of blood were aspirated from the NGT and then that is followed by multiple attempts to intubate. And it would seem the expert opinion for the first part of that day carries over to that, that there's been some sort of attack which has caused this.
Those are the three counts -- we've looked at the first one already. Those are counts 18 and 19. But leaving nothing to chance, the prosecution also point out a desaturation at 19.40 that evening when Dr Potter and his team had turned up. That's not a specific allegation on the indictment but it's brought in as part of everything and you know why we say it is brought in like that because it happens and who is there at the time? Ms Letby. She is not seen to do anything, she has no part in anything in terms of doing any harm, but she's there when it happens and we have had some witnesses saying they were there, other witnesses saying they weren't there. The implication is: well, there we are, she could have done it behind everybody's back at about 19.40 when they're all waiting to start their important work with [Baby N], just nipped in and did something unidentified. We'll go through this though.
Remember when we began at the start of this week and I looked at that table with you, table CEH16, the staff presence table with all the crosses and we looked at where there would have been gaps by the end of this trial, certainly in a couple of places. And I'd made the observation that, in the case of [Baby N], what we've seen happen is an effort made by the prosecution and by the witnesses, the experts, to establish a point of harm outside the night shift when Jennifer Jones-Key was looking after [Baby N].
The prosecution saying [Baby N] was unwell or he'd been sabotaged when he was handed over. Setting it all up, yeah? And then the experts, we'll remind you of this, saying, yes, however things were during the night, there's a break at about 7.15 and it's all change then, it's different, and that fits in with the allegation that Ms Letby is there in the morning and she's done something.
Well, we say, based on the evidence that on the 14th, the day before all of this, [Baby N] had been doing well in the care of Ms Letby and when he was handed over to Jennifer Jones-Key at the end of Ms Letby's shift he was well.
It's going to be important, we say, to keep in mind the note of Nurse Jones-Key and what she said about it. The note is at tile 141 in the second [Baby N] sequence. I'd be grateful if we could go there, please. We start above that, in fact, please, but we need to go to the larger entry above it.
A note at 05.51 by Jennifer Jones-Key. I'm going to look at the whole of the note because it's so important to the allegations being made and what we say about them:
"At start of shift baby nursed in incubator with eye protection in situ. SBR repeated at 21.00. Result 150. Lights stopped. For repeat in morning."
We don't say that is relevant:
"Baby demand bottle feeding on expressed breast milk. Taking good amounts on own bottles. Baby very unsettled early part of night."
We'll come back to that:
"I noticed that, just after 01.00 feed, baby looked very pale, mottled and veiny, abdomen slightly bigger. Seen by NNU Nurse Belinda Simcock, advised to place baby on saturation monitor. Reviewed by paeds. To be watched for an hour. After 30 minutes noted to be having desaturations to low 80s. No intervention required but quite frequent. Rest of observations within range. Reviewed by [Dr A] and for septic screen. Cannula inserted into right hand and bloods taken for CRP, blood culture and FBC..."
Is that cefotaxime? Anyway:
"IM cef given by NNU nurse. Baby looked worse this morning and cap refill 3 secs. Reviewed again by paeds. Placed into 25% ambient oxygen and nil by mouth."
And there's reference to dextrose commencing and then:
"PU, BO. No contact from parents."
If we look at the next entry to put this in situ with what happened next after that night, there we are, at 8.19 -- we'll come back to this in a little bit:
"At 07.15 baby crying and dropped saturations. Seen by NNU Nurse Lucy."
Then we're into that desaturation then and what follows. Could we just put back then the first part of the note, Mr Murphy, and I'm going to remind you of what Jennifer Jones-Key said. This is on 3 March. This part of the allegation is what we see here in effect is because [Baby N] had ben sabotaged in advance by Ms Letby, one of those things identified at the beginning about whatever she says, whatever happens, this self-serving method of allegation will just change to fit in:
"Question: I'm going to go through the events that you've described and ask you to help with some of the details. If we take this from the handover on 14 June from Lucy Letby [this is cross-examination], from that point [Baby N] was stable and he seemed to be doing well, didn't he?
"Answer: Yes.
"Question: And there were no concerns about him, were there?
"Answer: No.
"Question: We've seen your note and we'll take another look again in a little bit. You've said he was a little unsettled after handover through to midnight."
Pausing there, "a little unsettled", in case you wonder, when it says "very unsettled", is how the prosecution put it after questioning Jennifer Jones-Key when she was first giving evidence and she agreed, and that's at page 75, lines 5 to 8.
So I carried on:
"Question: You said he was a little unsettled after handover through to midnight?
"Answer: Yes.
"Question: That wasn't any significant concern, was it?
"Answer: No.
"Question: And as you've described to us, and as we've seen, at 9 o'clock that evening he took a full feed from the bottle, didn't he?
"Answer: Yes.
"Question: I think in your experience that suggests that he was a well baby and hungry?
"Answer: Yes.
"Question: We'll put the note up so you can refer to it if it helps, Mrs Jones-Key, as we go along, feel free to."
We looked at the note and at the entry that said:
"I noticed that just after 01.00 feed baby looked very pale, mottled and veiny, abdomen slightly bigger."
That was drawn to her attention. She said yes. She was asked:
"Question: So is that the time at which there first appeared to be a deterioration in [Baby N]'s condition?
"Answer: Yes, it was.
"Question: All right. So he'd been fine for 5 hours after you'd taken over from Ms Letby?
"Answer: Yes.
"Question: About 1 o'clock he deteriorates and actually, just in summary, that remained the case throughout the rest of the shift, didn't it?
"Answer: Yes.
"Question: And his condition didn't seem to get any better, did it?
"Answer: No."
So that's 5 hours after handover. Whatever is said about unsettled, he was feeding well, he was doing the things that a happy and healthy baby would do at that point, and the assessment of the nurse looking after him was that he was well and hungry. The deterioration begins 5 hours after she had taken over.
That is an end to the sabotage theory, we say. Ms Letby had done nothing to make [Baby N] unwell prior to this shift. He became unwell during the shift. We have it. But we also have a clear example of the way this case works in bringing allegations against Ms Letby, and as we go through this, and you'll have it on your sequence of events, ladies and gentlemen, you'll see from this note, and documented in [Dr A]'s notes, and he gave evidence about this, how [Baby N] deteriorated and became unwell that night. Jennifer Jones-Key took that from 01.00. We can see how matters go.
Interestingly, do you see at one point it says:
"Reviewed by paeds. To be watched for an hour." And then about eight lines down:
"After 30 mins, noted to be having desaturations to low 80s. No intervention required."
Do you see that on the note? [Redacted]. We had the agreed evidence read to you of Elizabeth Marshall who said the proper process would be to intervene or to help, certainly not just to stand there and watch.
That may very well be the textbook approach, we're not disputing that, that's why it's agreed evidence, and this isn't the only occasion. As you'll see, in reality the nurses will sometimes wait. Jennifer Jones-Key described this and she said they may tickle their feet to get a reaction but it's not a medical emergency. She said they may wait for 30 seconds to self-correct, maybe tickling their feet, it's not a medical emergency. And you've got a reference to that here and that's what I asked her about on 3 March with that.
More mottling as the night goes on. [Dr A] at tile 184 in his medical notes for 03.45, so we need to scroll down. He's dealt with other matters there but 03.45 describes five episodes, desaturations noted. He talked about this:
"Five episodes whilst on [maybe -- is that monitor?]."
But anyway five episodes. Mottling, he'd had, but had resolved. At 05.15 he described the persistence of mottling, which is nothing to do with air embolus of course. And by 05.30, [Baby N] had been made -- thank you, there we are:
"Mottled appearance persists, coming and going."
Do you see mottling here? By 05.30, the decision had been made for [Baby N] to be made nil by mouth. That is an obvious clinical marker of a worsening condition.
So that takes us now to what the experts said about these events, so we can take this down, please, thank you, Mr Murphy.
Dewi Evans on 7 March, it was a little confusing because in his report, pre-trial, he was asked about this, he had said:
"[Baby N] had sustained trauma to the back of his throat in the early hours of 15 June prior to the doctor being asked to see him at 01.45."
He'd said that in more than one place in that report. In evidence to you he said he meant that although [Baby N] had been unwell from around 08.00 he'd had the trauma from around 08.00. You'll have to weigh that up. But that's what he said in his report, he had linked the trauma to the trouble starting during the night shift. We say he had changed that by the time we got to the evidence here to separate trauma from trouble during the night.
Dr Bohin, also on 7 March, took a more nuanced approach. She said things were not right at 1 o'clock but it was from 05.15, with the lengthier capillary refill time, that the deterioration had worsened. But what she would not accept, when we put it to her, was that there was a continuing series from 1 o'clock, getting worse in the night, having deteriorations, building up to the profound one at 07.15.
She would -- she did not accept that that formed a continual worsening, that what happens at 7.15 -- in other words, she is saying that's different. We say, no, it's not, that's just making space to move it along to when Ms Letby is there. That's what we say and that is something for you to consider.
But let's turn to the 7.15 event, ladies and gentlemen. What isn't immediately apparent from Jennifer Jones-Key's note, but we dealt with this in evidence on 3 March, she described that by 7 am further desaturations had been commencing again. She said:
"He settled down once we commenced fluids, but from about 7 o'clock onwards he was having more desaturations."
So that's really leading right into the period at 7.15 when there's the big one we've seen on the notes. And that is in the period before Ms Letby came on to the unit, more desaturations from 7.15 onwards. How anyone can just draw a line and say, right, what happens before Ms Letby is there is one thing, what happens when she turns up we're going to treat that totally differently, we ask you, how can that be done?
What happened next you have heard from the evidence. Some things Jennifer Jones-Key remembers from the note, some things independently, but she was clear about this: she was in the nursery feeding a baby. Lucy Letby came on to her shift. We know from the door swipe data that she enters at 7.12 at the earliest, that's at tile 137, but 7.12 is the earliest. She goes over to the nursery where Jennifer Jones-Key was. She says that she was somewhere around the entrance to it, Ms Letby does. Jennifer Jones-Key says she's feeding a baby. The alarm sounds and Lucy Letby walks over, she remembers that.
We point out on the evidence there is no indication or sensible opportunity for Ms Letby to have done anything to cause this. We've had a whole night of mounting problems. No evidence of her doing anything wrong, but we are here now having to defend the position because of the presumptions that are made when she is there.
We say that what then follows from 7.15 onwards is the continuing problems and mounting problems from the deterioration that, without a doubt, had begun at about 1 o'clock in the morning.
We come to the question of blood seen by [Dr A] round about the time of an intubation or, rather, attempted intubation at about 8.05 or maybe a couple of minutes after that. This comes next. But actually, before we get to that, there's quite a lot of activity between the desaturation at 7.15 and the attempted intubation. I'm going to ask if we could put up tile 141 again, please, which is the -- and the second part of Jennifer Jones-Key's nursing note. It's the lower part. We can put the whole thing up. Thank you, Mr Murphy. So it's the lower part, sorry, my fault.
So this is carrying on:
"7.15. Baby crying, dropped saturations. Seen by Nurse Letby. Neopuff given. [Dr A]. Noted to be mottled all over body and blue in colour and cold to touch. Decision made to transfer to nursery 1. NG re-sited [that's nasogastric tube]. Re-sited in nostril with acid reaction. At handover baby dropped saturations again and required Neopuff. Care handed over to NNU Nurse Lucy."
Now, one observation we make for you to consider is this: we do not accept that Ms Letby has done anything or did anything to cause any bleed to [Baby N]. We say there is a real question about at which point did [Dr A] see the blood in his mouth during the intubation process. Do you remember? There's a question, was it before or afterwards or do we simply not know?
We question that there was blood there beforehand from the material that we have. We say it doesn't establish that. We do note this in the light of the evidence of Professor Kinsey who had said that any instrumentation could cause a bleed in a child with hemophilia, like [Baby N], and that that could include NGTs being used. That in the period between this collapse and blood first being seen, whatever precise point that was, Nurse Johnson (sic) has re-sited an NGT. We can see that. We don't accept that the note establishes when the blood is seen. But it would be strange for anyone to ignore that after the time we spent on the medical evidence in this case because if we're looking for an explanation of blood prior to intubation, we have one. If we want to consider the evidence that we've had, we've had one. Why we should just automatically leap to saying, "Well, Ms Letby must have done something", in the midst of a process where there's a lot of people involved, because we have him being moved, we have him receiving drugs -- we'll come to that in a moment -- we have him being looked after in a place that's busy with people about him. There's no suggestion she did anything there but we do have this.
Now, what we have looked at in the evidence and focused upon, and we looked at this as well actually, but what we've focused upon is the question in any event of whether it can be said with any certainty that blood was there before the intubation. Because we say that the most likely explanation for blood in the oropharynx were the multiple attempts at intubation with the laryngoscope that failed. That must be the most likely. But also to be considered is the alternative proposition which it was there beforehand.
We say there are three reasons, if we come to this, as to why the evidence does not support blood being there beforehand. First, and as we've just said to you, it's difficult to see how something can have been done to [Baby N] at around 7.15 that led to blood only being seen when [Dr A] came to intubate a little after 08.05 that is by way of a deliberate attack. It is very hard to see how that could be the case.
Secondly, we say, the clinical notes themselves do not establish the point at which blood is seen and, thirdly, in fact, the evidence of [Dr A], including taking into account what he'd said to the police before the trial, means that there is no certainty from him as to when the blood was seen.
So first, the question about whether something could have happened at 7.15 that led to blood only being seen after 8.05. [Baby N] is a haemophiliac. If he, or indeed any child, received an injury to the mouth or throat that causes a bleed, if that's what this really was, you would expect that that would be seen sooner, it wouldn't take 45 minutes, if there's some kind of blood flowing. He's very little, there are tubes there, there are all sorts of things going on. To suggest it's just missed is unrealistic.
And combined with that, yet again, despite the activity we have, we have Miss Butterworth and Lucy Letby administering medication from 08.00 to 08.06, pre-intubation, a number of medications. No opportunity to attack in the way that is alleged.
If we look at the clinical notes to see if they show that blood was there before intubation and we'll start please with Nurse Letby's, if we could, which is tile 151, please. Just looking at this particular issue at this stage, ladies and gentlemen, as to whether this is decisive in any way. It's a note by Ms Letby at 13.53 on 15 June dealing with care from 07.30 up to 13 -- in fact, it's completed at 14.10. So from 07.30 to 14.10. And the key point is this, four lines down:
"Decision made to intubate. Drugs given as prescribed. Unable to intubate. Fresh blood noted in mouth and yielded via suction ++."
We understand you're here to assess this case against Ms Letby and therefore you'll assess what she says, like any other witness, and you'll put it into the balance and you'll bear in mind the criticisms the prosecution make and their case and what they say about her documents. But certainly, on the face of this, nothing here suggests that blood is seen before the process of intubation. It simply doesn't. And in fact if we follow the order of events it's:
"Unable to intubate, fresh blood noted in mouth."
We can look at [Dr A]'s note, which is at tile 157 in this sequence. The note is made at 08.00 it says. There we are. It says 08.00, in fact we've got the timing of the intubation drugs being given there at 08.00, 08.05, 08.06, thank you. Then it says this:
"Attempted intubation x3..."
It gives the statistics of what was used:
"... using neck roll and laryngoscope blade. Blood present at oropharynx. Unable to visualise trachea inlet. Suction did not clean the view."
We say that is open to whichever interpretation you want to. We don't say it proves one thing or another, but we need some accuracy and it's open to either interpretation, but we ask you to keep this in mind as you look at this and what we would say is good practice.
We went over the process of intubation with [Dr A] when he gave evidence on 6 March. We went over the view, how it must be visible, you must be able to see what you are doing before commencing, you don't just stick a tube in where you can't see and hope for the best. In other words you're hardly going to have three goes at intubation if there's blood in the way and you can't see it to do it. That would be reckless. That would be very poor practice. If blood obscures the view, you are not going to have a shot anyway and so we say that if [Dr A] embarked on intubation, he must have been able to see the way to start with, and that would suggest that the blood would have come along after the process had started.
As for his evidence, to start with, his position was he believed the blood was there as he was attempting insertion number 1. In cross-examination I asked him to refresh his memory from what he'd said in his statement to the police and reminded him:
"Your recollection back in [and this is on 6 March, pages 73 to 75] 2018 was that you weren't sure if the blood was your fault when you used the blade inadvertently or if it had been present before attempting to intubate."
And he said yes.
Overall his view was that he felt it was there before, that's his view now, looking back, in fairness, but actually when we go back to his statement, he wasn't sure whether it was there or whether it was his fault when he used the blade inadvertently.
We say, bearing in mind that we need to be sure on these matters, we need to be sufficiently clear, but the notes certainly don't establish that blood is there beforehand and that when you consider the situation it is improbable that he would embark upon an intubation if he couldn't see the way. If there's blood there that stops it, you're not going to start, it wouldn't happen, and the interpretation that makes the greatest sense and the greatest medical sense is that this is blood that would have come about as a result of the attempted intubation. That would certainly be consistent with what Professor Kinsey said about how easily and readily [Baby N] would bleed.
So ladies and gentlemen, we're finishing a little early, it's warm, there's a lot of detail again, I know that -- I'm just saying for all of us, trust me, there's a lot to deal with -- but we have a final part to deal with, with [Baby N]. We should be able to deal with that before we conclude.
MR JUSTICE GOSS: Certainly, thank you.
MR MYERS: Count 19. So we move into the afternoon now of 15 June, the same day, but moving through the afternoon.
The way the evidence came out here, and we're not saying this to be difficult or critical, it can be difficult to organise everything when there's so much material and it's ongoing, but it seems to be what's happening is, as we come to 14.50, there's an episode where blood is spotted. A 3ml aspirate of blood, you'll recall on those records, is spotted around 15.00 and there's an incident with [Baby N] at that time, in conjunction with that, having a profound desaturation. This seems to be that it's following on from what had happened earlier, but because it's a specific allegation, Ms Letby has done something. Okay? Has done something. And following through from what the experts have said, it must be some sort of attack or something different from earlier because it's a separate count. It's a little difficult to unravel, we say, but certainly the event is clear and that's what happens at 14.50 with the desaturation and 3ml of blood being found.
Dr Saladi describes blood at 14.50. Interestingly, for all the doctors who attempt intubation in the period that follows, and there's about six or seven of them, five or six of them, he seems to be the only one who identifies blood. The others talk about swelling -- you'll remember Dr Huw Mayberry and his vivid descriptions of the epiglottis and we saw an illustration of it and he explained, although we're years later, how there appeared to be some sort of swelling there. But he didn't describe blood. He didn't describe seeing blood there.
Therefore it is strange, if Dr Evans and Dr Bohin are correct, that there is some sort of wound that's been inflicted in that way, deliberately, that there isn't more blood, we observe. There certainly was blood round about 14.50 when Dr Saladi does the examination and that aspirate is removed, but there's then a succession of doctors dealing with this, and mostly what they describe is swelling.
What the cause of that is, we say, frankly, is unclear, isn't it? It could be swelling from the morning, it could be from the attempted intubations in the morning, it could be getting worse as the day goes on and more people are having goes at intubating [Baby N].
Certainly Dr Bohin was definite that inflicted trauma to [Baby N]'s mouth, throat, or oropharynx was the cause of his problems that day. But the point is no baby in the Countess of Chester can have had more doctors looking into his or her throat in the space of about 8 hours than [Baby N] had that day with laryngoscopes, with illumination. And, save for Dr Saladi, we don't have descriptions of fresh or flowing blood or any identified trauma. We've got swelling but not identified trauma.
And as for the doctors who dealt with this, it is worth revisiting that list by [Dr D], which is at tile 420. We've seen this but this sets out people who were involved in attempts to intubate: Dr Mayberry, Dr Saladi, [Dr A] had earlier in the day of course, [Dr D], Dr Brearey, the anaesthetic team were called, I think it was Dr Campbell who was involved with that, so a number of people. You can see the note made by [Dr D] where it says "myself":
"Cords seen by [a word] anterior and obstructed by red swelling inferior to epiglottis."
Swelling. So for all that this is proposed to be trauma that is caused and trauma that would have caused bleeding, there are no signs of any kind of wound or damage like that inside the throat, that's the point, and he was well inspected by many doctors.
I'm going to move forwards, ladies and gentlemen, to follow this through to 19.40, which is the desaturation later in the evening when medical personnel arrive from Arrowe Park. You might remember things had become quite desperate at the Countess of Chester and there were talks of getting a theatre ready to perform an emergency tracheotomy because they could not intubate [Baby N] and they'd settled for a laryngeal mask as a way of helping him with breathing as they decided what to do.
We say it's unsurprising, sadly, that [Baby N] desaturated at 19.40 after the kind of day that he had had. This isn't an allegation, I remind you, on the indictment but it's something that is sent Ms Letby's way because she was there. But he'd had a very long day and had been through a great deal.
And in fact in evidence Dr Gibbs described how a poor fit with a laryngeal mask may mean he didn't receive the oxygen he needed. But however it worked, when Dr Potter and his team from Arrowe Park walked in, the walked into the midst of an escalating emergency situation. And you'll recall, for all that there had been the problems all day at the Countess of Chester, he intubated [Baby N] in the immediate aftermath of the desaturation in one go and there was no swelling and certainly no blood that he could note.
I'm going to deal with this because we ended up focusing on this and we say it's important because it just goes to show again the difference between, we say, someone who was equal to the task of looking after a child who presented particular difficulties and a large number of people who we say were not.
We'll look at that, including what Dr Bohin had to say. It is worth considering, we say, Dr Potter, who gave his evidence in a very straightforward, matter of fact kind of way, and we say, and you may remember him being there, he was trying not to be critical. I'll remind you of some of what he said, but he plainly seemed to be, at the very least, surprised that there was this problem. You'll know that one issue that arose was maybe the swelling had gone down by the time Dr Potter got there because of drugs [Baby N] had been given. I'm going to come to that.
But I will just remind you, first of all, of Dr Potter's expertise because he gave an opinion and gave evidence and then Dr Bohin later on gave her opinion on it. So we can see who the expert is here.
Dr Potter's expertise in this area was evident from his evidence to the prosecution. He was their witness and they asked him about this on 6 March. It's important and I'm going to remind you what he said. He said:
"Answer: I'm a consultant paediatric anaesthetist.
"Question: Thank you. Did you become a consultant paediatric anaesthetist back in 1996?
"Answer: I did, yes, 1 April.
"Question: Thank you. We'll put that date aside for a moment. Was that at Alder Hey?
"Answer: Yes.
"Question: And have you worked there ever since?
"Answer: I have.
"Question: Do you have a particular interest in your practice?
"Answer: My particular thing is paediatric intensive care."
So very much the man for the job you may think:
"Question: Thank you. Do you have particular experience with airway difficulties?
"Answer: Yes, I do. Of the group of consultants on the intensive care unit I have the most experience of airway problems.
"Question: Are you talking about Alder Hey amongst that group?
"Answer: Yes.
"Question: How many paediatricians are we talking about?
"Answer: I think it's 10 or 11 full-time."
So an expert in paediatric intensive care, anaesthetics, with particular ability with the children, the sort of children we look at here, paediatric intensive care. The most experienced of airway problems. A genuine expert in terms of what he does, not just what he calls himself.
He explained modestly that [Baby N] presented a fairly unremarkable case for intubation, this is his evidence, and something he managed with relative ease. Nothing like as complicated as he'd been led to believe before seeing [Baby N]. And although his view was that for a doctor without his experience it might have presented challenges, and he described actually how the anatomy of [Baby N]'s voice box was slightly unusually shaped, which might have made getting a line of sight more difficult, he added that he was surprised that there'd been such difficulty intubating [Baby N] by so many doctors, and he said this:
"Because [he] thought the Countess of Chester doctors were pretty competent."
Pretty competent. That says something, doesn't it? It means also that this was something they should be able to do but maybe not as competently as he could. We say Dr Potter was careful about his professional colleagues when set against the ease with which he did this, but it does perhaps give a picture of different abilities at different levels of care.
Dr Potter rejected flatly the suggestion that had been made by Dr Gibbs at first that dexamethasone at 17.45 and adrenaline at the time of the collapse could have reduced the swelling, because that was one of the ways in which there was a kind of workaround that was introduced for the doctors on the neonatal unit, that the drugs given from 17.45 onwards would have reduced the swelling. And he was adamant, and you know his expertise, that that is not what would have reduced it.
So this came down to a question of skill and experience. He had it and the doctors at the Countess didn't. And you may have thought that would be the end of the matter. But no. Dr Bohin comes, in effect, we say, you can judge it, to the rescue. She didn't accept the opinion of the highly qualified and experienced Dr Potter. Dr Bohin is a neonatologist, she has experience. She is not, we say, nor has the evidence suggested, someone with his experience of intensive care with airway problems in children like this paediatric intensivist in this fashion, the most experience of airway problems. She doesn't. This is his thing.
But, and you heard this, with her knowledge of remedies for children who bark like seals -- do you remember that about croup and her knowledge of how anti-inflammatories work or anti-allergens work with peanut allergies, she was ready to take him on and say, no, I think the drugs would have worked, it's just down to the medication.
Well, there's actually a straight clash between those two prosecution witnesses on this and we say it's not insignificant. He's absolutely clear the drugs from 17.45 are not the reason he could intubate, they will not have changed the swelling. She's absolutely clear that he is wrong. He is the expert who does this and she is not. But what she says kind of rose out of the Countess of Chester doctors, doesn't it? It does, because it's getting back to saying, well, Dr Potter could only do it because it was easier. It's nothing to do with lack of skill and that feeds back into the case when we consider are they equal to the task and why did [Baby N] desaturate at 19.40 in the way he did?
We say she stepped well outside her area in dismissing his opinion and well into the area of assisting the prosecution on that point.
My Lord, I could make a start on the next --
MR JUSTICE GOSS: By all means. 3 o'clock is the cut-off point.
MR MYERS: Thank you. Again, by saying I can make a start, I'm not dealing lightly with the enormity of what we're dealing with, but I know we -- having said 5 days, I want to be there. I should say, I've got to a point, Mr Murphy, where you may be having to freestyle with some references. If we do, it's from the [Baby O] sequence, but there won't be many in the next 10 minutes, there may be one.
I'm going to start with a reference, Mr Murphy, if we could, which is tile 89 from the [Baby O] sequence. Whilst you're looking for that, I was going to introduce it.
[Baby O], ladies and gentlemen, we know -- I say [redacted]. [Baby O], and I apologise now at the outset if I confuse the names. I will try and stay with [Baby O]. Again, I mean no disrespect if I get the surname wrong.
On 21 June, triplets were born, [Babies O, P & R]. [Baby O] was born at 14.24. He was triplet number 2. 33 weeks and 2 days' gestation and a little over 2 kilograms and 220 grams. That's on 21 June.
23 June, which is the date for count 20 on this indictment, is at 13.15 there was vomiting and abdominal distension.
At 14.40 there was profound desaturation and bradycardia accompanied by "mottled ++ and red abdomen".
At 15.51, he desaturated to the 30s with bradycardia and CPR then followed on a couple of occasions after that, on two occasions after that, but he could not be brought back to a level at which he could sustain life and, very sadly, he died at 17.47 that day.
Dr Evans has proposed or attributed this to an air embolus that caused collapse, plus some sort of trauma that caused bleeding and will have destabilised him. Dr Bohin puts vomiting and abdominal distension due to air down the NGT, the collapse at 14.40 due to an air embolus, and was a little more ambivalent over the deliberate trauma, though she did consider that as well. You know where we're talking about the trauma, we're talking about that injury to the liver which was identified on post-mortem.
I'm going to start, if I may, with the night of the 22nd into 23 June. This is when Nurse Ellis is looking after [Baby O]. We have a couple of notes dealing with that shift. We say he was well at the time of handover. When we look at this, a few items stand out. At this point he's tolerating feeds well if we look at the bottom:
"Part-digested milk aspirates under half the feed volume four-hourly. Abdo full but soft."
If we move on to 06.41. We have:
"TPN stopped as reached full feeds of donor-expressed breast milk. Tolerating well. Antibiotics stopped, blood cultures negative. Cannula removed. Gas completed. [There was a] Slight raise in lactate and Registrar Mayberry was informed."
We move on to the end of the shift:
"Abdo looks full, slightly loopy. Appeared uncomfortable after feed. Reg Mayberry reviewed. Abdo soft. Does not appear in any discomfort on examination. Has had bowels opened. Continue to feed, but monitor."
So that's the note from the night shift. We looked at this in evidence. During the night of the 22nd into the 23rd, which we're dealing with here, [Baby O] experienced some issues, some -- we looked at it -- whilst in the care of Sophie Ellis. That's why he was reviewed by Dr Mayberry. But no note was made by Dr Mayberry.
Lucy Letby was his designated nurse for 23 June and at 13.15 he became unwell. We ask this as we begin to look at this count: why is it that when [Baby N] became unwell with Jennifer Jones-Key at 01.00 in the morning the prosecution are ready to blame that on Lucy Letby's care of him up to 8 pm the night before, but when [Baby O] becomes unwell with Lucy Letby at 1 pm in the afternoon, we are asked to ignore how he was when Sophie Ellis looked after him up to 8 am?
We see the inconsistency, almost like a mirror image there. On both occasions we have a baby who becomes unwell after being handed over from one nurse to another and after a similar amount of time, and in fact the only difference is that whereas [Baby N] had been well when Lucy Letby handed him over to Jennifer Jones-Key, we know that [Baby O] had been experiencing some problem when Sophie Ellis handed him over to Lucy Letby.
So there's quite a big inconsistency in what can happen and what's said about it before we commence. We also ask, why is it all right for a doctor to attend but make no note in the case of [Baby O], but highly suspicious for a doctor to attend but make no note in the case of [Baby I]? Do you remember the 15.00 review? No note -- we looked at this with Dr Mayberry. There was no note made here and there was no note made there in the [Baby I] case. And it's said, "Well, because you didn't identify the doctor, Ms Letby, and you made it up". But yesterday we had a look, didn't we, at [Mother of Baby I]'s evidence? And we saw that, when you go to that, she describes a doctor coming for a review at 15.00.
So we have a similar thing, don't we, but a different approach to it? In this case, no note. That's fine, it's Sophie Ellis. With Lucy Letby and [Baby I] it's not, it's a critical factor. We say different standards, ladies and gentlemen, for different people.
If we apply the same standards to the case of [Baby O], we say that Lucy Letby could not be blamed for what happened at 13.15, at the very least, notwithstanding there's an examination of [Baby O] by Dr Cooke at 09.30 where we accept he didn't appear to have any evident problems.
Staying with the issue of how different people are treated differently in this case, there is a striking similarity with [Babies O & P] that the prosecution -- that has not been identified. For both [Babies O & P], their problems start on the shift before Lucy Letby comes on duty, however small they may be.
In the case of [Baby O], we have the changes in his condition, we have seen here; they're moderate but they're there. In the case of [Baby P], we have the question of large milk aspirates at 20.00 and 24.00 and then large air aspirates around 04.00. Do you remember? 25ml that we say cannot sensibly be linked to Ms Letby, however creative anyone gets.
We're not making any allegations here, we're just showing the inconsistencies of the approach because the common feature is Sophie Ellis. If we were to switch what I'm going to say now, Sophie Ellis for Lucy Letby, you'll see the point. Sophie Ellis is the night nurse both times. Samantha O'Brien hands [Baby O] to Sophie Ellis on the 22nd, before this. So Samantha O'Brien, Sophie Ellis, Lucy Letby.
It's Lucy Letby who hands [Baby P] over to Sophie Ellis on the 23rd. So Lucy Letby, [Baby P], back to Lucy Letby. On both counts, therefore, Sophie Ellis is looking after the children and on both counts they're handed back to her, back to Lucy Letby by Sophie Ellis when they both deteriorate, and in the case of [Baby P] within 2 hours.
In a case where we're looking at patterns, we just observe -- making no accusation, we're simply trying to show the inconsistencies of this kind of approach, that for both children Ms Letby is literally left holding the baby after Sophie Ellis has been in charge on both nights and where there have been issues of some sort on both nights but there have been different nurses handing the baby to Sophie Ellis before that point.
We should recognise there were issues on those nights because the doctors were informed on both nights of issues and changes in the babies' conditions. You can imagine --
MR JUSTICE GOSS: Well, how much longer?
MR MYERS: I'm virtually there, my Lord. This was it.
MR JUSTICE GOSS: Good. Sorry, I was just getting a little concerned you were gathering another head of steam.
MR MYERS: I was about to say it.
MR JUSTICE GOSS: I'm sorry, but --
MR MYERS: Simply this, simply this. If it was Lucy Letby who was in the position of Sophie Ellis on those two night shifts you could imagine what would be said if she was the common feature about both nights. That's the point. I'll pick it up in the morning, but that was it, my Lord.
MR JUSTICE GOSS: I'm sorry I interrupted you, but it was difficult to tell because you were joining up quite a few things.
All right, members of the jury. 10 o'clock tomorrow then, please, when Mr Myers will complete his address to you, I hope.
(In the absence of the jury)
MR JUSTICE GOSS: I did cause to be sent what I hope will be the final version --
MR JOHNSON: Which I at least have had an opportunity --
MR JUSTICE GOSS: I know you won't have done, Mr Myers.
MR MYERS: A very brief one, my Lord.
MR JUSTICE GOSS: I've essentially incorporated, not verbatim, but incorporated the suggestion that was made by you.
MR MYERS: I'm grateful. There was one other matter, but it's entirety for your Lordship. I did see this and I had the opportunity to look at this briefly before coming into court. May I just raise it now?
MR JUSTICE GOSS: Certainly, please do, yes. It'd be helpful.
MR MYERS: Then your Lordship has it. On the direction of the experts, this is page 4, and to some extent we are of course, as we always are, in your Lordship's hands on in. It's where your Lordship talks about -- directs the jury, I should say, on how they do not have to consider expert evidence in isolation and each expert was giving opinions purely from the viewpoint of their own specialised knowledge, each was careful to confine their opinions to conclusions they could draw from their own specialism.
We understand, of course, at that point your Lordship is setting out the process upon which they're embarked. There is an issue with the experts as to the extent, of course, to which they have confined themselves to opinions within their own specialism. The point we had raised, but it's entirely a matter for your Lordship, was that we were anxious that it did not appear that there was a settled view that they have to a man and a woman --
MR JUSTICE GOSS: I understand what you're saying because the criticisms that you've made in relation to -- a profession of having an expertise that you have challenged that they do actually have.
MR MYERS: We have. In fact, it came up then but it's come up in the submissions we've just been making, but it's featured elsewhere as we've gone through it and we were anxious that -- this isn't the purpose of it, we know that, but one does not know how a jury will react to what they receive in hard copy if they go back and look at it and if it appears that it's conveying that they have confined their opinions, we don't ask your Lordship to make comment one way or another but --
MR JUSTICE GOSS: No. I will add -- I have in mind what I'm going to add to make it plain that this is an expectation rather than an achievement.
MR MYERS: Yes.
MR JUSTICE GOSS: All right?
MR MYERS: Thank you.
MR JUSTICE GOSS: Some experts did, some didn't.
MR MYERS: Yes, they did.
MR JUSTICE GOSS: I don't want to get into the business of me saying who did and who didn't.
MR MYERS: No.
MR JUSTICE GOSS: Yes?
MR MYERS: There will be a visit, please. We're grateful.
(3.05 pm)
(The court adjourned until 10.00 am on Friday, 30 June 2023)
Friday, 30 June 2023 (10.00 am)
(In the presence of the jury)
Closing Speech by MR MYERS (continued)
MR MYERS: Good morning. Ladies and gentlemen, we were looking at the case of [Baby O], which is count 20 on our indictment, and just to remind you again, there's really three times on that date that the evidence focuses on on 23 June: there's 13.15, which is the initial vomiting and abdominal distension; 14.40, when there was a profound desaturation and bradycardia and [Baby O] and was "mottled ++ with red abdomen"; and then a desaturation at 15.51, which led to CPR from which he couldn't be revived, sadly. That's what we were dealing with.
Yesterday, just before we finished, I was simply, by way of illustration, drawing parallels with the way that a baby may pass to one nurse, who looks after the baby, be passed to another one, and even though the pattern happens elsewhere without any blame apportioned, when Ms Letby is slotted into that pattern in a similar way then it's treated as a harm event. That's what we were dealing with and I was just looking at the symmetry with these when Sophie Ellis is in the middle, receiving the babies from different people and then passing the babies on to Ms Letby both times.
We had looked and considered the extent to which there was any change in [Baby O]'s condition overnight and there was some change, not enormous but some change, and, if you recall, enough for the registrar, Huw Mayberry, to be asked to come and take a look.
If we move to the time at 1.15 pm, [Dr A], on 15 March, spoke about [Baby O]'s condition at this time. We say that what he identified were factors that showed a developing problem rather than anything which shows that any type of deliberate harm had been done. From the blood gas he said that it appeared that [Baby O] may have been developing or indicated a metabolic acidosis. He had wondered if there was infection -- we are not saying there was that but these were the thoughts that went through his mind.
The abdominal distension. He spoke about how a baby may take extra breaths that can lead to some distension, for example, when straining to pass a stool, which he described [Baby O] had done, and it is recorded on the intensive care chart that [Baby O] was on Optiflow at this time and had been for some time.
So if we're talking about mild distension, we say there's nothing really with his abdomen that can account for a collapse. And he didn't collapse at that time, of course. He didn't. We say even when we move forwards to the event at 14.40, the radiograph for that time shows only moderate distension. I'm going to come back to that in a little bit, ladies and gentlemen, about moderate distension there because the allegation is that, amongst various things that the experts discussed, excessive air was forced into him, so we'll see if it actually supports that.
It's important, we suggest, to keep in mind what [Dr A] said about the potential for a pre-term neonate to have problems after an initial 24-hour honeymoon period. In other words there can be a period when a baby can be relatively resilient and then, after that 24-hour period, any problems can take effect. What he said on 15 March was that:
"Preterm babies have a degree of resilience and it's commonly observed that babies you'd expect to have problems due to their prematurity or other circumstances often do well in the first 24 hours, so you have to be mindful that a deterioration may occur after that point."
Which we say is the type of period we're moving towards or into with [Baby O] when we say he did begin to deteriorate.
He was beyond that recognised period of resilience and we say that's relevant when we consider what happened and, again, the absence of anything that indicates Ms Letby did anything to him -- and you will remember, ladies and gentlemen, that at this point, in addition to working in the nurseries at a busy time of the day, she had a student nurse with her, Rebecca Morgan, who was in effect shadowing her. In fact she complained, didn't she, in one of the texts to one of her friends that she had her got her "practically glued to her", I think is the way it was put, I will remind us of the wording when we come to it. So not only is it the normal situation but there's actually someone there with her at this point. But we say this is where we get to at 14.40, with a gradual accumulation of problems for [Baby O] and into a period when [Dr A] recognises a neonate may develop problems. This is where we get to when things escalate and go -- and become more pronounced.
The expert evidence as to what happens at this point and moving onwards is, we say, confusing. And if you have followed it during the course of the trial and taken notes, and you did that when we were dealing with [Baby O] and Dr Evans and Dr Bohin gave their evidence, we urge you to look at whatever notes you had or recollections you have or whatever guidance you have received from us, as far as you can, and from his Lordship when you receive it, but we say it is very confusing as to exactly what is meant to have happened. We add in brackets that's not surprising because, as you know, we say these are experts who are deliberately looking for things they can allege or mechanisms they can describe to support the allegations.
Dewi Evans has provided, at different times, various mechanisms. His first two reports, when we asked him about this in cross-examination, alleged an assault in the early hours of the morning that must have injured the liver, which hit a tipping point later that day. We say that what he was doing there was actually acknowledging that there were problems in that night shift, in the early hours of the morning, and trying to link them to the liver injury much later. That's why he did that with his tipping point theory but importantly he'd originally said in his reports "an assault in the early hours of the morning".
There was also, we say, quite a lot of uncertainty about what use he made of the mark that Dr Brearey described that was there for some time -- do you remember, the small 1 to 2-centimetre -- and there was some debate, is it a rash, is it a bruise. It was plainly a mark that came and went. It doesn't appear to have been a bruise and it seems that Dr Evans had taken that as a bruise at some point.
We did in addition, and perhaps inevitably, get to air embolus with Dr Evans. We usually did, didn't we, whatever was happening? And of course, he includes trauma done to the liver and that is a real issue to consider.
Dr Bohin gave us air down the NGT, air embolus, and potentially trauma, and however she approaches it, certainly we recognise what happens with the liver is something that has to be considered, whatever the experts say in fact. That has to be looked at.
I'll just deal briefly with the other mechanisms. Air embolus. If you can find in the evidence precisely how, where, when that was meant to be done, ladies and gentlemen, by all means make use of that. We suggest it's very unclear as to how that works. The prosecution, frankly, didn't appear to identify a place because they -- we don't criticise them for this, this is the state of their experts' evidence -- but they concluded their examination of Dr Evans by saying that there were various timings, but the defence could look at them with Dewi Evans if we wished. Why should we descend to try or be expected to make detail, make sense -- to make sense -- of something the prosecution didn't?
You may remember that, "The defence can ask if they want to". Well, how can we? We don't quite know what he says happened or when and we didn't get that.
Post-mortem gas is something that is relevant in the case of [Baby O]. As we've had from Owen Arthurs, it's something to consider, the air in the great vessels, it is not conclusive, but the picture is largely the same as for [Baby A] and [Baby D] in terms of radiographs.
I am reminded, and I correct this, that Professor Arthurs did make reference to air in the bowel and in fact in the heart, so I correct what I said, if you remember, a few days ago about an absence of evidence of that. There was air he identified there.
But be that as it may, it is air in the great vessels that he focuses on and which he has drawn the comparisons with, with [Baby A] and with [Baby D].
And wherever we get to with that with Owen Arthurs, ladies and gentlemen, you know there are a number of explanations for air like that and they apply each time we come to this. They could be, Professor Arthurs says, gas introduced from outside, by accident or on purpose. It could be, less commonly he says, unusually post-mortem gas; that was his study that said in 25% of cases you could get this. And the strongest link he has identified on his actual research, in the academic sense, is the link with resuscitation, which is a common feature across all of them and, we say, is the most likely explanation for that same disposition of air that we see.
And it certainly doesn't look like the image that we have of an undoubted air embolus, which looks exactly like what you would imagine, with it branching out in different directions. We see that in the Lee and Tanswell paper and we saw that on the imaging of [Baby G] and none of them actually look like that.
So let's go back to discolouration. Again, there are many and varied descriptions for comparison, ladies and gentlemen. It was at this point of the case that there was the exchange with Dr Bohin where we were suggesting to her that we'd lost sight of any type of principled standard to apply and she, if you remember, said, well, it's rather like the business with chickenpox: we all know what chickenpox looks like, so we can spot chickenpox marks. The point is that's right: we do know what chickenpox looks like, we don't have much to go on with what air embolus discolouration looks like, we can't do it, outside this paper. And we had reached at this point in the case a stage where -- and you'll have seen this on the evidence -- literally everything could be used by the experts if they wanted to say, "Ah, that is unusual", even if the clinicians hadn't identified it as unusual.
Now one person who did give a vivid description was [Father of Babies O, P & R], and good deal of reliance has been placed on that. It's a description he gave in his interview on 16 December 2019. Nobody expects him to make records like a doctor or a nurse so there's no point made about that at all. But let me start with what he said. He described the veins being bright blue and he indicated his left hand and he could see the veins, also like prickly heat. He said different colours but emphasised blue, bright blue, prickly heat, "It got worse then went down again".
And do you remember, he gave that description, "Like ET's stomach"? And if you know ET, you'll know what that means. He tapped his hands and said it went down, although that might have referred to the stomach. And nobody could doubt how vivid and upsetting that is, we say plainly linked to a swollen belly and the veins being blue. And [Baby O] was very unwell and there had been an issue developing, in one way or another, for some time and there, we say, would be bound to be discolouration.
And Samantha O'Brien, whose statement was read to you, could see that [Baby O]'s stomach was distended and his skin "a bluey colour". And we've heard that is symptomatic of desaturation in babies.
And Yvonne Griffiths' statement was read to you. She was with [Father of Babies O, P & R] as he was watching and, looking at all the evidence equally and with equal degrees of analysis, she didn't identify or describe anything odd about [Baby O]'s colour at all. None of that is to take issue with what [Father of Babies O, P & R] says, but what will strike a witness and the things that stand out may vary, mightn't they, in a particular situation and the shock and impact for him is enormous and he has focused upon the colours and the discolourations he sees.
The blue raised veins and the ET description may reflect a distended abdomen and issues in relation to that. We say that isn't something that is linked clearly to air embolus, not at all, and it's significant that the other clinicians present, notwithstanding the background in this case, and let's face it the witnesses all know it because it was talked about, they haven't drawn distinctions from the colour of [Baby O] which stands out and which they have called especially unusual. And we say that is significant, that a natural desire -- there's every sense of sympathy with [Father of Babies O, P & R], every sense of sympathy, and the prosecution have seized upon his descriptions and used them as much as they possibly can. But we say we don't doubt he saw what he saw, but that isn't air embolus, you couldn't possibly base this on that.
[Dr B] said that [Baby O] was mottled when she first saw him at about 15.50 and she explained that is consistent with a baby with poor perfusion. That is important. Mottling is something that's sometimes used for air embolus by the experts in this case and sometimes not, but you know, ladies and gentlemen, you have probably developed a good knowledge of various areas of clinical observations if you didn't have them beforehand, but mottling is a sign of poor perfusion, not a sign of air embolus. So you have to be very careful with how that's used.
We come back again, as we move through the afternoon, as to how or when is Ms Letby meant to have done whatever was meant to be done with an air embolus? We know that the student nurse was involved with [Baby O] and with [Baby P] in this nursery. She told [Dr A] that, "My student is glued to me".
The closest we've come to any specific allegation is the period in which various medications are given to [Baby O], which means that his line is accessed, there's a run of them.
We'll look at them in a moment, but it happens around about 14.39, right up to the point of collapse at 14.40, and in various ways the suggestion has been made, or the implication made, that one of the last people or the last person to give medication before that collapse was Ms Letby, and we know she was involved in medication around that time. We have looked at this several times closely.
That point is not a good point. It isn't what the evidence is, so I'm just going to remind you because you can see who's accessing the lines immediately before this collapse and we say, on the evidence, it isn't Ms Letby.
We need to look first at the neonatal review because that sets it out in a particular way that, when we actually go through the evidence, we say is not accurate. So could we put up the neonatal review for [Baby O] at page 4, please, Mr Murphy? It's lines 92 to 97. In fact, let's go 92 to 100. There we are, thank you.
All right, ladies and gentlemen, if we look at this, this is from the neonatal review. The sequence isn't the same as this, but we've got Melanie Taylor and Samantha O'Brien at 14.39 giving medication at line 92. And there's a second medication given at the same time; that's at 14.39. Then we have the prescriptions which duplicate it. That's the actual prescription just being updated at 95 and 96.
Here what happened -- I'm not suggesting this is on purpose, but the analyst has put at 97 at 14.40 Lucy Letby with Samantha O'Brien starting an infusion. You can see that, can't you, and that looks very much like it happens just before the collapse. We have been through this in some detail in the evidence and to see exactly how this works, we need to go to the sequence of events and not the neonatal review. So if we put that to one side, and I'm going to ask Mr Murphy, if he would, just to go to the sequence of events and start at tile 191. It's important to look here now at how these work.
So 14.39 is the first of those medications being given by Melanie Taylor and Samantha O'Brien. That's sodium chloride, flushing a line before the antibiotic, cefotaxime, is given. And if we can go to tile 192, please, Mr Murphy. The next one along. That's at that time.
Next, 14.39, there's swipe data for Ms Letby, and we'll just confirm where she's coming from or going to. So from maternity labour ward to the neonatal unit. So she's not even there on the position at this point, this is the evidence. If we come back out of that and let's carry on.
Then we come to the second medication, also at around this time, 14.40. Sorry, we come to the -- we've had the two medications, we come to the update on the computer. So that's for the first one and tile 195 please: update to nursing notes. Can we move on from there, please. So 196, an X-ray around this time. 197, please. Then the event at 198.
We then have, at 199, clinical notes by [Dr A]. Then if we move to 200, at 14.40, we have the neonatal infusion that begins post-collapse, in fact, at 14.40 with Lucy Letby and Samantha O'Brien.
If we go to [Dr A]'s notes, if we just go back, please, and open them up, and scroll down, it takes a little bit of careful reading here but this is dealing with what happened after 14.40:
"Called to see [Baby O] at 14.40. Desaturation, bradycardia, mottled. Bagged up and transferred to nursery 1 and continual Neopuff required in 100% oxygen."
It's got some statistics. The PEEP. Now:
"IV cefotaxime and 10ml sodium chloride bolus already given."
Can you see that? That's really important. "Already given." That's the 14.39 ones:
"Further 10ml per kilogram [whatever] then intubation following and morphine."
The 14.40 infusion with Lucy Letby and Samantha O'Brien is what follows with the intubation. We see that. The cefotaxime and the sodium chloride are given beforehand and we can see "already given". That's what we have at 14.39. And we had this -- we went over this in evidence in fact.
It's important to keep this in mind because either the impression or the suggestion may be made, or has been made, sorry, that at 14.40 somehow Ms Letby was involved in what took place immediately before the collapse. She was not. We're not saying that what happened at 14.39 caused the collapse, although again you could be fairly confident what would be said about it if Ms Letby had been involved in that, but the fact is at 14.39 it is Mel Taylor and Samantha O'Brien accessing the line. And Ms Letby's involvement follows.
Can we move, please? Thank you, Mr Murphy. We can take the tile down.
Also alleged is air down the NGT. Again, we have the same questions, ladies and gentlemen. When? How? For how long? How is that done when there are other activities going on, when a student nurse is there involved with all of this? What we do have is the radiograph that was taken round about 14.40 or at 14.40. And we have the image of that at tile 197, so I'm going to ask Mr Murphy to put that up next because this was relied upon in particular by Dr Bohin to say that there's been an attack with air.
This is the image. We can see the timing and the date. If we just scroll down we can see the gas there. This is at -- it's accepted this is 14.40 that this is taken. Can we scroll down to the actual note, please and just roll it down. This is the note that goes with it and we ask you to look closely at the description of distension. It's the fourth line down:
"Moderate gaseous distension of bowel loops throughout the abdomen."
Do you see that, ladies and gentlemen, "moderate distension"? Do not forget it's being said there's an attack here with an intent to kill. Professor Arthurs agreed with what the report says, on 16 March, when he was asked about this as moderate distension.
Pausing right there, Dr Bohin, when talking about the distension at this time, in evidence on 15 March, used words like "severe distension", "huge distension". She told you, in terms, that the radiograph of 14.40 revealed and we quote "a huge amount of gas in the abdomen". That is wrong. However she comes to say that, it is misleading because it is not a huge amount of gas in the abdomen. And given the mechanism she proposes, we suggest it's hard to see how that happens as a mistake or if she just misread this. But Professor Arthurs was very clear, this is moderate, and to say it's a huge amount of gas isn't right. We say straight: that is coming from a biased way of approaching this evidence.
Professor Arthurs agrees that the radiograph -- on 16 March agreed the radiograph can't show how the gas came to be there and he was dubious about Optiflow being an explanation. You may remember I asked him about that. We got as far as agreeing that CPAP belly could cause things like this, but he did take issue with my suggestion that Optiflow could have done it, I recognise that.
But, and this is crucial, when giving evidence on the same occasion, we say it's crucial -- you can assess it, ladies and gentlemen, it's a matter for you -- but he agreed that so far as this moderate degree of distension was concerned a radiograph like this might arise where there is no apparent cause. I'm just going do read to you -- this it's on 16 March at page 64. I asked him:
"Question: Is it the case that sometimes it might be encountered but no apparent cause is found? You may encounter images like this and there's no apparent cause?
"Answer: Yes, that's right. We know that tummies expand for whatever reason with some of these babies."
We have that certainly with [Baby I] in her history and it's important and, we respectfully observe, fair of him. It's the sort of thing a responsible, independent expert will do. He's been called by the prosecution, he's asked questions by both sides. We ask him:
"Question: Is it right you may get something like this with no apparent cause, in other words it can happen?"
"Answer: Yes, that's right."
That is a fair concession and we rely upon that.
We turn then to the third issue and the one -- it's a matter for you, ladies and gentlemen, but the one that we recognise is the one that is perhaps most likely to exercise considerations in [Baby O]'s case. We know that so I'll deal with that next.
There is injury, and plainly significant injury, to [Baby O]'s liver. A lot of the evidence in this case is upsetting, inevitably this no less than anything else that we have looked at. The issue is whether you can be sure that was done by Ms Letby to [Baby O] with the intention of killing him.
In their closing address to you the prosecution said:
"Before [Baby O] collapsed, Melanie Taylor had looked at him and thought that he didn't look as well as he had -- and you'll remember this bit of evidence, don't you, ladies and gentlemen?"
And then they said this:
"What she didn't know, and what you know from all the circumstances, is that [Baby O] by this stage had an internal bleed."
Now, we say that actually, there is no sufficient basis for that assertion at all. I'll explain why we say that. Just pinpointing, first of all, the time that comment relates to. On 9 March at page 61, Melanie Taylor in evidence described this conversation, where she said, "I don't think [Baby O] looks as well", and Ms Letby said, "I think it's all right". That conversation is happening an hour or two before the collapse. That's the collapse when [Baby O] is moved from nursery 2 to nursery 1, so that's the 14.40 collapse.
So that conversation is around 12.40 or 13.40. We ask rhetorically: the prosecution have decided the liver injury was done, therefore, between 12.40 and 13.40, at the latest, and we say on the basis of what? There is no clear evidence of when that was caused. There is no time attributed to it.
Dewi Evans, at one point, had suggested, if you remember, something had happened in the night that reached a tipping point later on and he was fairly imprecise. That leaves a pretty broad range to follow with Dr Evans as to when it could have happened, even including a period when Ms Letby wasn't there, although he retreated from that in evidence.
We say that no medical witness has identified that [Baby O] had sustained a liver injury by 13.40. If that's right, then this is a very approximate comment that is being made on the basis of insufficient or no evidence.
[Dr A] saw him, [Baby O], at 13.15 -- and we started with this this morning -- and he saw some abdominal distension and there were various issues and acidosis, but certainly nothing that led him to identify any internal injury. And we recognise an inevitable part of this case is -- and this is a reasonable observation, isn't it -- that if these things are happening, other people on the unit may not be looking for them. We can see that. We know you'll see that. All right? But certainly nothing at that point stands out in that way and no one has identified things like drops in blood pressure or changes in heart rate or anything which indicates an internal injury at that time.
And there's a reason why we are pursuing this point. We know a radiograph was obtained at 14.40. We've just looked at it.
Certainly on that nothing follows from that that has led anyone to say there's anything strange about the liver. Nothing. We say that the comments of the prosecution to fix the injury at that time is done for a particular purpose, we say it is, you've heard the question from the prosecution, why. Why did they say that? We say it's because it assists them in trying to move it away from a period when it could have happened during CPR. And we say that is one thing that follows whether that is the design in that comment or whether it's incidental, I don't know, I'm not trying to say, but a consequence of seeking to move the time of injury to between 12.40 and 13.40 is to move it away from when we say it was most probably caused.
And we say, ladies and gentlemen, that we cannot say how this was done, that CPR can cause it and could -- and I'm going to go through both of those because there's two questions. The first one is: can, in principle, CPR cause liver injury? The second is: could CPR have caused this injury?
Can it cause injury? Dr Evans and Dr Bohin flatly denied the possibility of this outright. We say that they have to be wrong about that because of course it could. And in fact Dr Evans provided, didn't he, in support of his position, the guidelines on neonatal life support that specifically direct the person giving CPR to be careful not to press too low because that risks damaging the liver? So it's very straightforward: you wouldn't have to have guidelines like that with that warning if it wasn't a possible danger. So it's a possibility we say, that's why the guidelines say that.
Dr Marnerides, the pathologist, was particularly dissatisfied and critical of me for seeking to establish that CPR can cause liver injury by talking about injury to [Baby P] at the same time as we were dealing with [Baby O]'s case. This was on 30 March.
Now, straightaway, can I identify, so you understand, we understand this reasonably, there's a big difference between the injury to [Baby P]'s liver and the injury to [Baby O]'s. I am not suggesting that they're anything like the same magnitude, of course they're not, we know that. But Dr Marnerides encountered no difficulty in accepting that what we have on [Baby P] could be the result of CPR. And we say, if that's right, looking at the location in general, then it is possible for CPR to cause injury.
We say it's very simple: can CPR cause liver injury? We say, on the evidence from [Baby P]'s case alone, it must be able to, to cause it. The magnitude is the second question, but can it do it? Yes, it can. We say the real issue is whether the injury in the case of [Baby O] could be from CPR. Is that possible?
The prosecution have pointed to how you can look at one count and apply evidence there to another. We say, if we take as our starting point [Baby P] and the principle that that can happen, then when it comes to the extent of injury we say, first of all, it is of little use Dr Marnerides seeking to introduce road traffic accidents, trampolines and bicycle accidents or pots following out of aeroplanes. That doesn't help us. They are extreme examples. He is a pathologist, he will see the worst and most extreme cases, and others that are not, but inevitably what he won't be seeing in the general run of practice is where injuries have been caused to livers and somebody has lived.
So he won't be able to tell us how little force it would take to cause an injury like this. That's the crucial thing. A pathologist can tell us how bad it can be but he will not be able to tell us how little the force could be and he can't. It is very important to draw the distinction between him picking the most graphic illustrations of what can happen but being also able to see how little it could take and we don't know. We suggest, ladies and gentlemen, it's going to take a good deal less force to cause an injury like that in a neonate than the extreme examples he was giving us, particularly since it's not combined, as far as we know, with any external injury or impact, or anything like that, which you may think is significant when we've had bruising elsewhere in other cases. There is certainly nothing there. How is that if we're talking about something which is the force of a road traffic accident?
If anybody did resuscitation with [Baby P], CPR, as the staff did on that resuscitation video -- and it's RG6 and you have a look at that -- you imagine somebody doing CPR on a baby weighing 2 kilograms in the way it's done on that video.
It is upsetting to see the haematoma and the extent of it. A lot of the haematoma is the spread after the damage has been caused. What we asked Dr Marnerides -- and these are difficult things to deal with because it's upsetting material, but what we asked him and what we wanted to explore was: is it possible that CPR could do this? And I want to remind you of what he said after quite a lot of questioning on 30 March. We'd had the business about pots falling out of aeroplanes and it's possible -- or a pot in the desert next to somebody and it's possible it fell out of an aeroplane but not probable. Do you remember that? We're not suggesting anything like that.
But I asked him.
"Question: So that you understand, and I appreciate your position in this, Dr Marnerides, you don't accept the proposition that forceful CPR could have caused this injury in general terms. You don't. Do you agree it can't categorically be excluded as a possibility?"
What he said was this:
"Answer: We are not discussing probabilities here -- sorry, we are not discussing possibilities here, we are discussing probabilities. I cannot see how it is probable. Possible, it could be. But we need to understand that we are referring to -- when we discuss, we need to understand what we are referring to when we discuss possibilities and probabilities."
Because -- it had so many double faults I'm going to read that answer back to you again. He said this -- in answer to the question, "Can CPR be categorically excluded as a possibility", he said:
"We are not discussing possibilities here, we're discussing probabilities. I cannot see how it is probable. Possible, it could be. But we need to understand what we are referring to when we discuss possibilities and probabilities."
Now, we say, upsetting as this is, that that approach, we say, is wrong because this case, like any criminal trial, is about being sure. It's not about what is probable, it's not about "Is it a probability?", we say that is the wrong approach. We are talking possibilities. That is the question. And however reluctant he may have been, or anybody is, to acknowledge this fact, his evidence is:
"Possible, it could be. I cannot see how it's probable."
Right. Well, that is his evidence. Now, one of the reasons, one of the reasons we raise CPR or the question about -- so could it have happened? Yes, it could. Sorry. Could CPR do this? Yes, it could in principle. And could CPR account for this? Yes, it could, it is possible.
One of the reasons we raise this or one matter we look at in conjunction with it is that telephone exchange. We'll have a look at that post-indictment schedule if we could, please, Mr Murphy, at tiles 111 through to 125, because we're not raising this in isolation in the sense that nobody could possibly raise a question about how CPR was done. This was a very, very tense, difficult situation. You heard a statement read from [Mother of Babies O, P & R], who described staff in a state of panic and uncontrolled as events unfolded with [Baby O]. That's the atmosphere.
And then we have this exchange where Ms Letby and [Dr A] are talking about a conversation with a doctor who I think was Dr Best, Dr Jess Best. We'll run through about 13 tiles. [Dr A] to Lucy Letby:
"Did J tell you what was wrong earlier?"
Can we go through these to 125, please? Thank you.
Ms Letby:
"Not really. We started talking but then people came into nursery and she dashed off."
Next, please, [Dr A] to Letby:
"I'm not sure where the information has come from. It seems that on the SHO grapevine somebody at LWH [Liverpool Women's Hospital] has said that one of the triplets was found to have a ruptured liver. J was upset that this may have been caused by her chest compressions."
114:
"Oh no, that's awful."
Letby to [Dr A].
115:
"No wonder she's upset. Were you able to reassure her?"
116, please. [Dr A]:
"We spent 20 minutes in a cubicle going over everything. The CPR was all at the 5th rib space, between the nipples. The DuoDERM on [Initial of Baby P] was high."
[Initial of Baby P] would be [Baby P]. We're not suggesting this is a ruptured liver in relation to [Baby P]:
"If there was anything it will have been due to fluid volume causing liver distension."
117, please. [Dr A]:
"I'm not sure I believe it."
118:
"It was a coroner's PM. It usually takes weeks to get any report."
Let's carry on to the end of this bit, please, 119. From Ms Letby:
"It seems a bit of a rumour mill has gone into overdrive. The boys were only returned today. Can't see how info would be out that quick."
120:
"No, me neither."
121:
"Not nice for J though. Can see how it could play on her mind."
[Dr A]:
"This has come at the end of a seven-day run for her."
A seven-day run:
"Not a good time."
123, Ms Letby:
"No. It's good that she felt able to tell you. "
124:
"I'm good for a hug and a chat. I think I helped", says [Dr A].
And then 125:
"She said she had spoken and cried on you and Huw and was feeling better for it", says Ms Letby.
Whatever has happened, it took 20 minutes to discuss how CPR was done. We looked at this in the course of the evidence. We say, at the very least, this raises the possibility that, amongst those dealing with this, injury can be caused by CPR. That's plainly something that she was concerned about, that J was concerned about in the circumstances that she was dealing with. We know CPR was performed on two occasions with [Baby O].
That is as far as we can take that. Ms Letby says, "I didn't do it". We do not have to explain how -- you understand that, ladies and gentlemen -- but we do actually ask you to look at that evidence. We don't shy away from it, because we'll know you'll want to, and it's important and it carries, in every sense, an impact, doesn't it? But we ask you, when you do look at it, to keep in mind that when it comes to CPR, we say, on the evidence that we've had, however reluctantly given, is it possible for CPR to cause liver injury? Yes, it is. Is it possible it could cause this injury? Yes, it is. And if that is right, and in the absence of other evidence, we would say, that could possibly mean that you can attribute it to Ms Letby, we are some way from being sure of that. If we're not sure, that is not guilty, however emotionally impactful that evidence is. But that's a matter for you, ladies and gentlemen. We've dealt with it in detail because we understand it's something you will want to look at in detail.
We were also, in the case of [Baby O], taken to a Datix form, do you remember, with reference to IV access having been lost and IO access, intraosseous access, being used. And that was on the theme by the prosecution that Ms Letby lays false trails, it's a deliberate lie designed to make it look as if an air embolus had been introduced, could not have been introduced because there was no IV access.
It's a theme the prosecution follows. And we say, as in other cases, it simply can't arise in this place -- in this case because if a form had been put in earlier in the day saying, "No IV access", then maybe someone who was sufficiently clever could be doing that to make it look like they could never have done anything to cause the collapse. But that form relates to events once the collapse had happened, if you think about it, because we're talking about the IO needle being used. That is after the collapse has happened. So whatever the state of IV access is at that time, and even if Ms Letby is wrong about it, it hardly provides her or anybody with the ability to say, "I couldn't have done it because we'd lost access". Because if someone's had access to it, it was before that point anyway.
And we do observe the reason we have that Datix form is because the prosecution have brought that up. That's why we're looking at it. We didn't.
[Mother of Babies O, P & R] described how upset Ms Letby was after the death of [Baby P]. We say that is normal. It's what you'd expect. She was involved in looking after them, after their deaths, the triplets, [Babies O & P], with the memory boxes and [Father of Babies O, P & R] described that, but then again she's the designated nurse. There's nothing odd or suspicious about that.
Naturally, attention moves to her behaviour later on with the note. You know, the note where we can see, reading across it, on what looks like the anniversary of their birth, she's thinking of them. And in fact we have had in evidence, I omitted this, reference to her looking at the [Family of Babies O, P & R] on Facebook, that is one of the searches, on 23 June 2017. Again, effectively the anniversary, isn't it?
There are two ways of -- many ways of looking at that. There is the way the prosecution say, which is in some way that shows or is indicative of her having killed them, putting it bluntly. That's the allegation. That's what they're saying. We say it doesn't get close to proving that. It really doesn't. It may well show that on the anniversary of their birth it is something that she remembered and in her state of mind, that is consistent, we say, with the distress she was experiencing, of which there is no doubt, it is not misleading, she was deeply distressed over this period as she looked back at what happened.
So how is that meant to indicate that she's done something to harm them as opposed to anguished at the thought of what had happened? And that's how it reads, particularly when you put it in the context of her frame of mind at that time.
There are often a number of ways of looking at the pieces of evidence in this case, particularly those pieces, and quite a big difference applies to whether one approaches it looking at it through the lens of a presumption of guilt or the lens of a presumption of innocence. The presumption of innocence would mean that if there is any other explanation, other than what the prosecution say, then that's the one to go with and there is, most definitely. Nothing about those establishes guilt.
You will have to decide that ladies and gentlemen. You understand these are submissions we make from the defence position. But there is no set script to that. There's no set view. We say to you all of that and the note writing is of a piece with the distraught condition she was in at that time.
We'll move next, ladies and gentlemen, to the case of [Baby P], count 21 on the indictment. First of all let's start with the details with [Baby P]: [Baby P] was born on 21 June at 14.23, 33 weeks and 2 days. He was the first of the triplets and his weight was 2.066 kilograms.
The key events that we'd looked at collectively on this count are as follows: on 23 June, so this is the day when, tragically, [Baby O] died, on 23 June at 18.00, the clinical notes record a mild abdominal distension with [Baby P]. He was in the care of Ms Letby that day, who had with her the student nurse, Rebecca Morgan. Care was handed over to Sophie Ellis.
During the night shift of the 23rd into 24 June, he produced large milk aspirates and then large air aspirates. You've probably seen these documents so often you can probably almost see them in your mind's eye as you look at them with those entries in them, with the large milk ones on the first page of the feeding chart and then the large air ones with the small bit of milk on the second page. That's overnight.
The doctor was called for a clinical review, that's Huw Mayberry, but he didn't make it to the nursery before he was called away again, so there was no review of [Baby P], although there was meant to be one, because they were too busy.
If we move forwards then into the morning of 24 June 2015, at about 9.40 [Baby P] had apnoea, bradycardia, desaturated and was mottled with a distended abdomen. And this happens in the nursery just after Dr Ukoh had reviewed him.
Then at 12.28 that day, there was a further desaturation and bradycardia. That is the point at which [Dr B] says a tube was dislodged. We'll look at that.
A right-sided pneumothorax was eventually identified. Treatment for that commenced. And then at 15.14, so quarter past 3 almost that afternoon, there was a collapse and cardiorespiratory arrest, during which you may recall [Baby P] received significant doses and infusions of adrenaline. Notwithstanding that, he couldn't be resuscitated and he died at 16.00 hours. So that's the course of events when we come to [Baby P].
What the experts say about this I'll deal with as I go through it because on this count there's a lot of detail from them which casts light potentially on how events went. We say there are two very specific issues to keep in mind with [Baby P]. The case against Ms Letby revolves around the desaturation, the event at 9.40 in the morning: apnoea, brady, desaturation, mottled with distended abdomen. The case around her revolves around that in particular.
The first question to keep in mind is whether it can be established, so that we or you are sure, that she did attack [Baby P] in some way so as to cause that initial deterioration.
The second issue really that emerges on the evidence, we say, is whether she dislodged the breathing tube at 12.28. It is something that [Dr B] describes, you remember. Those seem to be the two key issues.
There may be other matters that you look at or you consider important. That's entirely for you, ladies and gentlemen. But whilst plainly addressing you on behalf of Ms Letby, we are trying to impose some structure on what we're going through here, so this can be looked at in detail and in an ordered fashion.
Ms Letby is clear she is responsible neither for the death of [Baby P] or what happened at 09.35 or 09.40. We say, I'm going to give you the detail in this shortly, it is important to appreciate how the prosecution's own expert medical evidence shows that death was probably caused by a pneumothorax sustained by [Baby P] as a result of the resuscitation procedures after the 9.35 deterioration. And I'm going to remind you of that evidence -- there's so much evidence, I've got every bit written down in front of me here and I struggle to keep track of it. But that's really important when we consider what the charge is here, of murder.
We say that evidence about what happened is important because it doesn't just answer the question of why [Baby P] died, but also because, once you see that bad management or bad treatment or failings in treatment by the hospital may be to blame for what happened, you will at least be more alert, ladies and gentlemen, to the possibility of efforts to shunt blame Ms Letby's way again.
I'm going to deal first, actually, with the issue of the medical treatment that [Baby P] received and then we'll come to the question of what the evidence is that can establish that Ms Letby is responsible for all of this beginning in the first place and we say it certainly doesn't, but we'll look at that.
The medical treatment. There's two parts to this really. The first, we say, is that the pneumothorax that [Baby P] undoubtedly had was caused by the resuscitation response, in particular the ventilator pressures. Secondly, there was then a failure to identify and treat that as rapidly as should have happened.
So I'm going to deal with that first because we say it's important you have in mind the gravity of those mistakes before we come to look at the way things are being said against Ms Letby, then you have a bit of context about some of the things we say about those allegations.
Dr Bohin, on 23 March, gave evidence about [Baby P] and she dealt both with the final collapse and death and the question of what lay behind the deterioration at 09.40 in her opinion. At this point I'm just going to go to the collapse and the death, as you know. These are, we say, the key points from what she said. 23 March, page 61:
"The chest X-ray taken at 11.57 should have been done sooner."
There was a chest X-ray taken, it was taken at 11.57, "It should have been done sooner", and that's the chest X-ray, ladies and gentlemen, that revealed a moderately large right pneumothorax. That's the first thing:
"Chest X-ray should have been done sooner."
She said, page 62:
"The pressure [Baby P] had been put under on the ventilator after the 9.40 event was high for a baby like [Baby P] and that may have caused the pneumothorax."
She said, page 70:
"Even after the chest X-ray had been delayed until 11.57, from the notes it appears that it was not reviewed until 12.30."
She said that attention should have been paid to the pneumothorax sooner to prevent complications and, she gave the example:
"... to make sure that it did not become a tension pneumothorax."
She said the pneumothorax may have contributed to the collapse prior to its being discovered. By "the collapse prior to being discovered", we're talking about the 12.28 deterioration, the one which [Dr B] blames on a tube dislodgement. Right? There's going to be a picture that emerges here in a little bit, ladies and gentlemen, not an unfamiliar one.
But actually, the prosecution's own expert evidence is that pneumothorax that was delayed (sic) late, wasn't reviewed until 12.30, so hadn't been reviewed until after the tea break desaturation, that might have contributed to that collapse. And that is the collapse, the one where [Dr B], the consultant in charge, is keen to blame it on a dislodged tube, patently nudging it Ms Letby's way, and then the prosecution took their lead from her and called it the tea break dislodgement, didn't they, or tea break desaturation?
Well, if [Dr B] is right, ladies and gentlemen, you will want to see, when we come to them, what she said about such a significant event in her notes, won't you? Because we know that tube dislodgements are noted in notes, we have seen that elsewhere, and we can expect to see that if she's accurate in what she is telling you and we will take a look in a little bit. You may even want to see whether it features in the notes of [Dr A] who was there and did deal with this in some detail. They're important sources, aren't they, of corroborative evidence to see how much reliance we can put on what the responsible consultant said.
We say that, on the expert evidence, 12.28 should be called "the failing to react to the pneumothorax desaturation", not "the tea break desaturation", because that is the expert evidence, failing to react to the pneumothorax. And at the conclusion of her report, and as she accepted in evidence, Dr Bohin had said this -- she accepted this in evidence:
"My impression of the care afforded to [Baby P] after the collapse on 24 June [that's the collapse in the morning] is that it was muddled. There were unacceptable delays in the recognition and treatment of the pneumothorax, the ventilatory strategy used and the use of a high dose of adrenaline infusion was unusual."
I'll come back to that.
Switching to Dr Evans, and he'd given evidence on 22 March. When the prosecution asked Dr Evans:
"What was the cause of events with regard to [Baby P]?"
And this is looking across what happens that day, Dr Evans said the only thing he could think of was that he'd suffered complications from the pneumothorax.
He also said, 22 March, page 157, that he could:
"... identify no natural cause of death."
But he said in cross-examination that the pneumothorax was most likely the consequence of resuscitation, and that's resuscitation following the 09.40 event, and specifically the pressures during intubation that followed, which could or would overinflate the lungs. That's how it happened. His view, ladies and gentlemen, again this timing is important, was the pneumothorax will possibly have increased significantly between 11.57 and 12.40. So this fits together in fact with what Dr Bohin said, what we prefer to call, on the basis of the expert evidence, the "failing to react to the pneumothorax dislodgement".
And Dr Evans' view, as he gave in cross-examination on 23 March, in his three reports pre-trial, and he didn't disagree with this in evidence, was that death was the result of complications from the pneumothorax. That's on 23 March he gave that evidence. And that's what he had said in his three reports pre-trial.
So on the question of causation on the charge of murder, ladies and gentlemen, we say that whatever happened at 09.40, and we'll have to look at this of course, but we say that there's nothing to suggest [Baby P] would not have been stabilised at that point and that on the basis of the evidence, particularly that prosecution expert evidence, ironically on this occasion, death was in all likelihood the consequence of poor medical procedures after that.
We say therefore it's little wonder, for example, that Dr Brearey refused to accept the extent of the harm done by his team, or the potential extent of it, and his unit when I asked him about the management of the pneumothorax and the consequences of not managing it on 22 March, and he would not acknowledge any issue with the delayed chest X-ray or ventilator settings or a problem caused by a delay in identifying the pneumothorax or, for that matter, the doses of adrenaline. We say it is no surprise once you have that background, or that part of the foreground, in sight that blame has headed in the direction of Ms Letby.
We said at the start of our submissions to you, ladies and gentlemen, on Monday, that this case is a prime opportunity to hide poor performance and bad outcomes and we say that is what is happening now with this.
Before I come to the 9.40 collapse, can I just remind you, there's been reference to it in what we've said, without a doubt [Baby P] received doses of adrenaline during resuscitation that were much higher or higher, you pick the word, higher than he should have had. Do you remember we went through this and certainly it appears to be double the intended dose. That is an error.
Dr Bohin agreed that too high a dose can cause lactic acidosis, although she pointed out [Baby P] already had it, so it's difficult to work out to what extent adrenaline would have made a difference. On 23 March we talked about this. She accepted that once that happens there are an increased likelihood of issues, side effects. Lactic acidosis is potentially one side effect of excessive adrenaline, but she was keen to point out that didn't mean it happened in this case, which is as far as we got with that. So I'm not suggesting she agreed it was made worse by the adrenaline, she didn't. We got to the point that it could be but it would be difficult to tell since he had lactic acidosis anyway.
All we can do, ladies and gentlemen, is point again to something that was not done correctly, and that was a mistake on the mathematics -- and it's mathematics that the people who deal with this type of procedure would be doing all the time. Remember, we went through it with Dr Rackham. All right?
I'm going to move then to really the question that comes first in time, which is: does the evidence establish, so we can be sure, that it's Ms Letby that caused the collapse at 09.40?
We can keep in mind the state of the medical evidence on what followed. The allegation is based upon the theory, the opinions, of the experts, Dr Evans and Dr Bohin, that the 9.40 collapse was caused by air down the NGT. They both get there in different ways. The destination is the same, the journeys are different.
The prosecution have maintained that [Baby P] was already unwell when he was handed over to Sophie Ellis the night before; do you remember? They say, in effect, Ms Letby had sabotaged him. And the experts certainly begin by basing their assertion, we say, on that radiograph that was taken at 20.09 on 23 June. Certainly Dr Evans did unashamedly, so let me deal with him first.
Dr Evans. His view was that the radiograph at 20.09 indicates that gas was in the system that is instrumental in the collapse at 09.40. It is, we say, unbelievable that an abdomen splinted with gas sufficient to cause a collapse should not do that at the time you have it on the radiograph, but should have done so, with a kind of delayed effect, 13 hours later.
Dr Evans had a solution to that, and you'll remember the solution, I suspect, when I remind you of the words he used. That was on 23 March of [Baby P]:
"I think he had an extra dollop of air in the morning of the 24th."
Right?
We say that is as absurd as it sounds. So Dr Evans, this prosecution expert, says we have a radiograph at 20.09, almost there, it's like one dollop short of splinting the diaphragm. It's like everything minus a dollop, and that's there throughout the night and then the necessary dollop is given the next morning. You heard it, ladies and gentlemen. You can decide how convincing it is, it is a matter for you. We say it's utterly unconvincing but it's a classic example of trying to work up the explanation with the available evidence, isn't it? I mean, if that diaphragm was being splinted or almost splinted, there'd be some fairly dramatic reaction at that point you may think. And the suggestion of dollops being given later on... It's something done for the convenience of the explanation, we say.
Dr Bohin was a little more difficult to pin down on this issue. We put to her that her report suggested that the excess gas she is referring to was gas that was seen on the radiograph from the night before the collapse, in other words what Dr Evans was saying. I went through this with Dr Bohin and she eventually said on 23 March: well, that was poor wording on my part. In other words she's agreeing, yes, it may look like in my report I was saying that, but I don't mean that not now, not when I'm giving evidence. "Poor wording on my part", is what she said.
But you see, ladies and gentlemen, if there was sufficient air to splint the diaphragm that wasn't there the night before, she then was presented with the problem of explaining where the air had come from that caused such a collapse, because there's no radiograph that can explain that, there's nothing taken that morning that show air could have done that. She began vaguely, we say, by saying air had been added in the morning. I pointed out to her the examination by Dr Ukoh at 9.35 which noted moderate distension and various other findings but nothing that we said indicated a splinted diaphragm. Undaunted, ladies and gentlemen, Dr Bohin's answer was this:
"Hmm, Not when he examined him, but 10 minutes later this baby has a cardiac arrest and has a distended abdomen, so I've put two things together and I think the most likely cause is that this baby has splinted his diaphragm and decompensated at that point."
Okay? In other words, all right, yeah -- it's like a game of chess with check, check, check, moving around. It's not the night before. Okay, it's not the night before. Well, it can't be that morning because he's examined by Dr Ukoh at 9.35. Hmm, no, it can't be. Ah, what's happened is, in the 10 minutes after that, the baby has splinted his diaphragm and decompensated at that point, which seems to be getting close to rather what Dr Evans said, but a good deal more than an dollop of air going in. That seems to be that all the air is put in, sufficient to splint the diaphragm, after the medical examination whilst Dr Ukoh is in that room, in the 5 minutes or so between the end of the examination and the collapse. There is no other explanation that goes with what Dr Bohin said when we go through her evidence and she was adamant by this point that what happened the night before is not what she means is responsible for the morning.
The reviews with Dr Ukoh are ongoing in that nursery. Christopher Booth, on 21 March, had said the collapse happened pretty much straight after the review of [Baby P] with people in the nursery. We have a continuous line of events here, ladies and gentlemen, from this point and we say that, on any sensible view, again, there is no opportunity for this. Whatever's happened there is no opportunity.
The evidence of who exactly was in that nursery varies across the witnesses but it seems to be the following people: Anthony Ukoh and Christopher Booth, obviously Ms Letby, for the student nurse Rebecca Morgan, the evidence is less clear as to whether she was there or not, but there are people around. And we say, both in terms of the time available, whatever method is meant to have been used at this point, and with people in the nursery, it is implausible in the extreme that there's been some sort of attack in a five-minute period, putting sufficient air down an NGT to cause his diaphragm to splint.
We say the more likely position, and the more reasonable one, is that [Baby P] had been all right at the handover at 8 pm the night before but had deteriorated during the night, we see the milk not being digested and it being aspirated in quite large volumes. Then we see air being aspirated from his stomach, getting into the morning, and this continues into the 9.40 review.
My Lord, I just want to check, what time is convenient for the court? I can continue for a little while.
MR JUSTICE GOSS: Well, perhaps I'll ask the jury. Do you want a break now or do you -- yes.
MR MYERS: Thought so.
MR JUSTICE GOSS: It may be that we'll have two breaks during the morning session then.
MR MYERS: Yes. I can say --
MR JUSTICE GOSS: Because thoughts have been going through my mind about next week, obviously, and I'm wondering -- we'll try it with two breaks today and see how you get on in the morning with 10 o'clock starts or we'll stay at 10.30 next week with one break.
MR MYERS: I should say if it assists, my Lord, I should finish in good time today. So a later start would not have interfered with that in fact, so I apologise for the earlier start.
MR JUSTICE GOSS: It doesn't matter, we've started, but we'll have a break now.
(11.11 am)
(A short break)
(11.21 am)
(In the absence of the jury)
MR MYERS: My Lord, did you wish for another break? Because if you do, could you indicate the time? Did you say you wanted two breaks in the course of the morning?
MR JUSTICE GOSS: Yes, if you want to have a break or if you want to have an earlier lunch, it's entirely up to you.
MR MYERS: Thank you. Whatever suits your Lordship.
MR JUSTICE GOSS: It was getting quite hot in here but it feels a bit cooler now I've come back in. We'll see. I'll keep an eye on the jury and see how they are. If you think it would be appropriate to have a break at any time, just say, you just choose it.
MR MYERS: Thank you very much.
MR JUSTICE GOSS: It's much better, you'll know what's a good point and what's a bad point. I don't want to repeat yesterday.
(In the presence of the jury)
MR MYERS: Ladies and gentlemen, we say that in reality now, putting to one side the allegation of sabotage the night before, that in reality there was no significant problem with the care of [Baby P] or his health before the handover to Sophie Ellis. So just to have a look at the evidence on that, during the day of the 23rd, Ms Letby and Rebecca Morgan, as it happens, had been involved in [Baby P]'s care. And Rebecca Morgan, the student nurse, was involved in that up until she finished, which we established was around about 7 pm. And when we looked at the observations in the care charts, we could see where she had written the entries in and sometimes they'd been co-signed with Ms Letby, sometimes they hadn't been, but we established she was certainly involved in the entries and with the care.
I'm going to ask if we can put up the fluid chart at tile 24, just to see the entries up to 18.00, if we can just go into that. If we could open the chart, please, Mr Murphy. Thank you.
We're perhaps sufficiently familiar with this to work with what we see here. We've got RM, Rebecca Morgan's initials, for [Baby P] for 08.00, 10.00, 12.00, 14, 16. And she confirmed in fact that is her at 18, although part of that isn't completed. But that's her doing the form. So she's involved with that certainly up to 18.00. It's not entirely clear who it is that's doing the actions, so I'm not going to suggest that's absolutely clear, but the two of them appear to be involved.
When she was asked about the 18.00 column on 22 March, the question I asked was:
"Question: Well, actually there's another column we've seen, 18.00, the next one along to the right. Again, is this your handwriting, where we've got EBM NG 15 121 [as read]?
"Answer: Yes.
"Question: That's your writing at 18.00. There's nothing in the aspirates, in fact, on that occasion is there?
"Answer: No.
"Question: Does that mean maybe [Baby P] wasn't aspirated at that time for whatever reason?
"Answer: No. I would have always checked the aspirates before we gave a feed."
But this is just dealing with the situation as we're going that evening and who it is that's looking after [Baby P] and who's involved.
There was a review noted up by Dr Cooke but by Dr Gibbs at 18.00 and that is at tile 134, so could we have a look at that, please, Mr Murphy.
It's the top half of this page:
"18.00, R/V Dr Gibbs."
But it's Dr Cooke who's filled this in. Nothing particularly dramatic or of concern but attention has been drawn to four lines down:
"On examination: abdomen full mildly distended."
Can you see that? So an abdominal X-ray was ordered. You can see under the plan, "Abdo X-ray", but I'm taking time to go over this with you, ladies and gentlemen, so you can put into context the allegation that there was some sort of sabotage that happened. Easy to say. This is what we have.
It seems the X-ray may have been delayed if that's what triggers where we come to next because we do have a radiograph that was taken at 20.09, so it's actually taken after handover, and that's at tile 173. And this now is the one that Dr Evans is referring to about there being gas the night before that was topped up by a dollop after about 13 hours. You know what we say about that. But if we go to tile 173 we have that radiograph.
Do you see, ladies and gentlemen? 20.09 on 23 June. As to what we make of this, the evidence of Professor Arthurs is important. Dr Evans said on 23 March -- in fact, can we scroll down to see the writing beneath it, Mr Murphy? I'd better make sure we've all had that too. Thank you.
This is the relevant bit for our purposes:
"Gas-filled bowel loops throughout the abdomen, through to the lower rectum, with no evidence of obstruction and no plain film signs of perforation."
Thank you. If we go back now to the image, I'd be grateful, just up the page. Dr Evans said the air on the radiograph was excessive and he even went so far as to say that he listened to Owen Arthurs' evidence and Owen Arthurs had said this was excessive. He said Owen Arthurs had said it was excessive as well.
Owen Arthurs, when he gave evidence on 16 March, didn't put it that way. In fact, he said no more than moderate dilation. What he fixed on was:
"The pattern was quite unusual, extending all the way to the rectum."
But just taking the points as we take them. First of all, the expert evidence of the radiologist -- sorry, the radiographer, was that this was not excessive, but the pattern was unusual. And he agreed, we say significantly, as he did in the case of [Baby O], that:
"There may be no readily identifiable cause for this."
This is on 16 March in cross-examination. The question was:
"Question: Are we in the position again that, when we come to consider the range of other possibilities, first of all this may be dilatation for which there is no cause that can readily be identified?
"Answer: Yes, that's possible.
"Question: That's possible. Because I'm going to suggest that, as we have seen sometimes, babies' stomachs dilate or their abdomens dilate just in the course of their treatment; is that correct?
"Answer: Yes, it's possible."
This is, you may agree, significant stuff. It may be not what everybody wants to hear. Anybody, for instance -- the prosecution don't rely upon that, they don't go to that. Well, they're the prosecution. But you have to decide, not anyone else, not how anyone reacts or what they think, it's your opinions, ladies and gentlemen, that matter. That's from Owen Arthurs.
In answer to the question:
"Question: Whether babies stomachs may dilate when talking about this or their abdomens dilate just in the course of their treatment; is that correct [as read]?
"Answer: Yes, it's possible.
Also, you remember, Professor Arthurs said he would expect this gas to pass through a baby in about 1.5 hours, not 13 plus a dollop. This isn't going to be there, we say on the basis of that, the following morning, this isn't causing splinting of the diaphragm or anything like it. No such description at the time. If we look at tile 178, we've got [Baby P]'s blood gas for 20.27 on the 23rd. Can we scroll down a little bit, please? There we are, you can see where Sophie Ellis has signed it, 20.27. There's nothing at this point significant there. This isn't a baby that's being sabotaged. That's the allegation being made to support this count to obtain a conviction in part, but that is evidence of no particular problem at 20.27, which would be extraordinary if this is doing anything to harm the baby, to harm [Baby P].
The observations, if we want to see them, at 20.00 and 22.00, could we go to tile 22, please, Mr Murphy.
This covers the period of the 23rd into the 24th, if you look at the top. I wonder if we can just see the initials at the bottom just for a moment, Mr Murphy, if you could go down there. If we look down you can see where Sophie Ellis has been signing for this. We might need to enlarge it a little bit, please. There we are. Go to the right-hand side, in fact.
We see those -- this is the chart which is a little difficult to follow at first with what is where. We've got Rebecca Morgan signing and then Sophie Ellis. So we can see the night shift and, if we scroll up, we can have a look now to see if these are the readings of a child who has been sabotaged.
The suggestion is, from Dr Evans, that something happened overnight that took a dollop the following morning are utterly, we say, unsustainable, the suggestion this is sabotage is unsustainable, but it was made.
What does happen, ladies and gentlemen, we say, is that [Baby P], having been handed over in good condition to Sophie Ellis, does begin to deteriorate overnight. Sophie Ellis' note is at tile 169, I wonder if we could put that up, please.
Could we go up to the top, please? Thank you. This is a note at 01.31 in the morning. If we just read down through the body of it, we've seen the condition that [Baby O] was in at the handover. It says:
"Cares taken over for night shift at 20.00. Safety checks completed."
And so on:
"Philips monitoring in situ. Apnoea alarm now in situ as on caffeine. Observations have been within limits."
So it starts off well enough:
"Did have one desat into 80s and 1x brady into high 90s. Self-corrected. No intervention required."
Pause there. If you remember what has been said about self-correction and the evidence of Elizabeth Morgan, which may well be right, we're not disputing it, it's agreed evidence, but we do see nurses sometimes wait before they step in, and then a baby may self-correct. That's what appears to have happened at this point.
So at this point no particular issue. However, as we move on -- and you will recall the charts maybe, ladies and gentlemen -- there is a 14ml part-digested milk aspirate gained at 20.00. That was recycled, the feed continues. Then we see at midnight:
"20ml part-digested aspirate gained. Abdo full but soft."
Dr Mayberry was informed. You may recall, it may be later on, but Dr Mayberry was meant to come and review [Baby P], wasn't he, but he didn't because it was busy. That's just how it was. But that tells a story, a small part of it maybe.
[Baby P] was made nil by mouth, in fact, at midnight, you can see it says after:
"Reg Mayberry informed. Planned to put nil by mouth."
And he was made nil by mouth. That is not a good direction of travel.
There's no record of air being aspirated from the NGT during the night -- during the first part of the night up to midnight but air does begin to appear in the records by 04.00. I wonder actually, though it's not on the list, Mr Murphy, whether we can put up tile 237, if it's possible to get there. We will be going back to tile 169.
Just to remind us all, ladies and gentlemen, we're getting more and more familiar with these, but we can see at 04.00, 25ml, that's air. And there was more air on there at 07.00 and a little bit of milk.
We've had evidence, haven't we, about whether or not, had there been air there earlier, it would have been taken out when the milk was taken out because you keep going until nothing else comes out. It's a little difficult to tell if it was or it wasn't, really, on the evidence, you may think, but certainly there's air being extracted then which, you may think, going back to Dr Evans, makes it all the less likely there's air in there overnight waiting for a dollop the following morning. That is unsustainable, we submit.
But things are changing, [Baby P] is nil by mouth, producing air, and this is 8 hours after the handover by Ms Letby. There's been no significant deterioration by this point.
Kathryn Percival-Calderbank, who was on duty at this time, the senior nurse, gave evidence on 21 March. She was involved in the aspiration or aware of the aspiration of the 25ml from the stomach and she said that [Baby P]'s abdomen appeared quite distended around this time; that's 04.00.
If we go back now to the nursing note of Sophie Ellis at tile 169, please. If we scroll down, can you see the note at 06.39? It says:
"Abdo has been soft and non-distended. 25ml of air aspirated by Senior Nursing Practitioner Kate Ward."
That's Percival-Calderbank. Sophie Ellis is saying abdomen soft and non-distended. The evidence, it has to be said, of Kathryn Percival-Calderbank was when the 25ml was aspirated from the stomach, at that time -- this is page 40 -- his abdomen appeared quite distended around this time. There is a conflict between them. We're not saying necessarily anything follows from that but we cannot help but observe if there'd been a conflict like that involving an entry by Ms Letby and a senior nursing practitioner, you know how that would play out ladies and gentlemen. You do, we say.
This is the position, this is the direction of travel then as we come to the following morning at 9.25. And then we have the ward round where Dr Ukoh -- if we go to tile 134, again, please -- where Dr Ukoh reviews [Baby P].
Just scroll down to the lower half of the page. There we are. It's the timing, really. This is the next clinical review, Dr Mayberry not having done one, 9.35 this happens, and we know that within 5 or 10 minutes of this there is then a desaturation. And we will hear what the experts say about that and their different explanations for how it is a harm event.
We say there is no proper basis, first of all, to say there is sabotage the night before. That's not supported by this evidence, we say it's contradicted by it. And we say that you can see a deterioration in [Baby P]'s condition which is consistent with what happens shortly after this review.
Now what happens after that is the ventilation with pressures that are too high and the pneumothorax and the failure to take the chest X-ray in time and the failure to identify this in time and the failure to deal with it in time, all of which play a part in, according to the experts, the collapse or are likely to play a part in the collapse at 12.28 and are likely to contribute to, if not explain, the sad death of [Baby P]. We've been through that, that's why I dealt with that first so you can see what this leads into. You can see why there's some explaining to be done at this point -- I mean as we move forwards into an investigation and trial.
What about the tea break dislodgement then? Because enter [Dr B] at this point. Not so much involvement with her in the case in this way up to now, but she gave very striking evidence, you may feel, when we came to [Baby P]. It became very dramatic indeed, you will remember it:
"Got to get [Baby R] out, it's the only way he's going to live."
And things like that and we then had described to us the tea break desaturation.
Let's look at the evidence, ladies and gentlemen. [Dr A] talked about the deterioration at 12.28 when he gave evidence on 20 May (sic). He agreed, page 100, it may have been from the pneumothorax that had not at that point been identified or dealt with. He made absolutely no reference to a dislodgement of the tube. That's interesting, isn't it? We'll look at his notes. They're pretty detailed and he didn't mention a tube dislodgement.
In fact, he did mention something, so the tube was in mind. What he said was that he'd removed it and I asked him about this, page 99:
"Question: You removed the tube, in fact, didn't you?
"Answer: Yes, I did.
"Question: But it's difficult to recall from this passage of time whether or not that tube was checked for secretions; is that correct?"
He'd made some reference to secretions:
"Answer: It may well have been checked, it's certainly not recorded here. I suspect the tube was removed and put down on the trolley where all the intubation kit was. The priority was to get the next tube in, to secure the airway.
"Question: The poor colour change on the capnograph, does that suggest a problem with the breathing process for [Baby P], putting it at its simplest?
"Answer: It suggests there's not the -- not the required amount of carbon dioxide passing back up through the tube, whether that's through blockage or poor effort."
He wasn't sure, but he talked about blockage. He didn't talk about the tube having moved, and we'll see his notes in a bit, but nothing about a dislodgement from [Dr A]. We know at this time he had not yet identified a pneumothorax. We know from the expert evidence what is very probably contributing to this desaturation, to this problem.
So despite what [Dr B] later says about a tube being dislodged, the tube is seen and removed by [Dr A] who gives no description about that. And you may think if there'd been a dislodgement, that is a prime person who would. We can look at his notes just to satisfy you if you'd like, ladies and gentlemen. They're at tile 420.
Can we go to tile 295, first? This is the second page, sorry. It's in two different tiles. You know what's going on with [Baby P]'s lungs at this point but if we scroll down the page we'll get to 12.28. All right:
"12.28. Desaturation bradycardia. CPR commenced. Poor colour change on ET capnograph. ETT removed and bagged."
That's what he described. Nothing about a dislodgement or anything like that. If we go over the page then, which is where we need to go to, that's it thank you. To page -- tile 420:
"Re-intubated 3.50."
Then there's the details there:
"Adrenaline infusion commenced."
And so we go on. These are detailed notes, absolutely no reference to tube dislodgement.
And we can see the chest X-ray, it says at 11 -- at 12.30 and this is when it is reviewed, at 11.57, the chest X-ray wasn't reviewed until 12.30. So this desaturation has happened in that period of time. It should have been reviewed. The pressures should have been lower in the first place, but they having been too high, it should have been reviewed. It wasn't.
This is over the very period that [Dr B] went on to say there'd been a tube dislodgement and we know where that takes this case. When one of the consultants says that, we know where that goes. And this is where the right-sided pneumothorax is found. So that's [Dr A] on this.
Let's see what [Dr B] says. If we can go to tile 625 please.
These are notes that she wrote later that evening, so there is, it seems, time to reflect upon the day and consider what had happened. So she wrote these in knowledge of what had taken place:
"Written retrospectively from 9.30 am."
She describes being called to the nursery -- I'm going to summarise but we can read it through. That's the 9.40 incident. There's dropping sats and heart rate and, just a few minutes earlier:
"Briefly seen [Baby P] and D/W [discussed with] registrar."
Can we just carry on down a little bit. So this is:
"[Discussed with] registrar. To do a gas."
I can't decipher everything, ladies and gentlemen, but we know what we're looking for:
"Full blood check. CRP. Shortly after this [Baby P] deteriorated."
Okay? If we carry on down here, something about the bag, IV access, lost -- not flushing. Actually:
"IV access lost -- not flushing. Airway maintained with Neopuff bag whilst getting intubation ready. Few attempts at IV access unsuccessful. [Dr A] arrives took airway from Dr Ukoh. Dr Ukoh inserted IO needle."
If we can carry on, please. This is as we go into the afternoon, in fact, with the adrenaline being given:
"[Dr A] and I were present with [Baby P] throughout the day."
It says:
"For detailed notes in management and resuscitation please refer to [Dr A]'s note entries."
Can we just go over the page, please, to see what follows:
"I spoke with Dr Rackham at 10.30 and updated about [Baby P]. Was advised they would enquire whether a bed was available and also to try to arrange to take [Baby R] at the same time or unit (parents' requested this so they can be together). Spoke to Dr Rackham again at 1 pm..."
So this is after -- it's well after 12.28 and so on.
It's a long note. I think it may go to a third page, in fact. Let me just check. That's it, 2 pages. There we are, a third. There we are.
You won't find tube dislodgement anywhere in there. Anywhere. And she made such a lot of it in evidence here on this trial for Ms Letby. And of course, if you are persuaded by what [Dr B] said, then there's an explanation for what happened that doesn't involve sub-optimal performance, does it? It doesn't involve medical -- it dovetails neatly with this prosecution and it's all Ms Letby's fault, but if you go to the material here, you won't find tube dislodgement. You'll find [Dr A] wondering is it blocked and you'll find the late identification of a pneumothorax that caused a collapse, but not a tube dislodgement. And that's not an accident, ladies and gentlemen. You've seen that happen here. You make of it what you will, it's a matter for you, but we say that tea break collapse, when you look at all the evidence, should simply be called "the unidentified pneumothorax collapse" because that's what the evidence establishes.
Even more surprising, you may think -- we can take that down, thank you, Mr Murphy -- even more surprising in the circumstances is, [Dr B] having told us that certainly by this time or around this time she was aware of Nurse Letby and suspicions being upon her, there is not even a Datix report, for example. We're back in that territory, aren't we? Not only is it not in the notes, but there's no complaint, there's no issue raised about it.
She was a little reticent to explain how she did know about this and had she spoken with her colleagues about it. And she began, when I asked her about it on 21 March, by saying, do you remember, that there had been flippant comments about it and then she withdrew the word flippant. That was the first word she went for, but she withdrew that. I asked her:
"Question: Which consultants were these that you were sharing these comments with? Who were you talking to about this?"
She said, page 148 on 21 March:
"Answer: I wouldn't want -- I don't exactly remember to be able to give you the names."
"I wouldn't want -- I don't exactly remember to be able to give you the names", is how she put it. There aren't that many, are there? Not hard for you to tell you who.
Well, as Dr Evans said, we tend not to spread news about the mistakes we make.
Just another couple of points with [Dr B], ladies and gentlemen, because she had a lot to say on this episode and directed, in fact, at Ms Letby. That was a direction of travel of her comments. Do you remember the comment about Ms Letby having said about, "He's not leaving here alive", and [Dr B] gave a very dramatic account of that event when she gave evidence and told us there was a point when Ms Letby turned to her and said "He's not leaving here alive, is he?"
And the prosecution say two things. First of all, this was unnecessary because [Baby P] was doing so well and, secondly, it reveals what Lucy Letby had planned or done. We say neither of those actually reflects the situation.
Whatever is said now about how well [Baby P] was doing, the evidence of [Dr B] in fact was that she was very worried herself and that she felt out of her depth, whether or not there had been a good gas. And we know this because when she gave evidence on 21 March, talking about how she felt around 12 noon, she said -- and she was becoming very animated in this:
"Oh the transport..."
She was talking about her thoughts:
"'Oh, the transport team are going to be here soon', almost thinking out loud, more than anything else, and I'm literally sort of counting the minutes before they arrive, just desperately wanting this baby to get better, and thinking, you know, there's something -- you're just totally out of your depth, can't think what's going on, maybe someone else can come, and Staff Nurse Letby says, 'He's not leaving here alive, is he', which I found absolutely shocking at the time and I just turned around and said, 'Don't say that, he has had a good gas.'"
First of all, from that evidence, the impression was not that [Baby P] was doing brilliantly at that time or doing well or was stable, it sounds like she was worried to death about the situation -- and of course this is during the period of the undiagnosed pneumothorax and she was feeling totally out of her depth.
And as for what Ms Letby said, well, it's a matter for you, ladies and gentlemen, and what you make of how Ms Letby expresses herself. You may form the opinion she has a tendency to say or do things that reflect the emotion of the situation as she believe it requires. We have had that with her being inappropriately upbeat sometimes with some parents, maybe misgauging it, people can do that. Turning round and saying something like this maybe utterly consistent with that, may be consistent with social awkwardness or saying something inappropriate. It doesn't prove murder, which is what is being alleged here.
And you may think if Ms Letby is as smart and as in control as the prosecution would have you believe and if she has, as it was put, done this or was planning it, the last thing she is going to say to the consultant in charge is, "He's not leaving here alive". She's simply saying what it seems were the anxieties in people's minds at that point as the medical staff were failing to identify and react to what had happened.
And of course it culminated, the evidence did, with [Dr B]'s dramatic account of hoping that [Baby R] could be taken away at the end of the incident. And she said to you, ladies and gentlemen:
"I just remember thinking at the time [this is when Dr Rackham came later that afternoon] the sobbing -- dad was there and sobbing, stood next to [Baby P], and literally begging Dr Rackham, 'Can you please take him', and even though I didn't beg, I said it to Dr Rackham in a more professional. Way in my mind and heart I just wanted him to leave because I thought that's the only way he's going to live."
Do you remember that? That was a high charge of emotion when she said that. In effect, they're both begging Dr Rackham, "Take him, it's the only way he'll live". Yeah? And naturally, the prosecution identify that because that sounds a very striking piece of evidence.
But that's just not right. The process concerning [Baby R] didn't come out of what was going on with [Baby P] at this time. We've actually just seen it in the note from [Dr B]. What was going to happen with [Baby R] had been decided earlier that day. If we just go back, please, to tile 672. It's page 2 of the tile, please, Mr Murphy.
(11.54 am)
(No audio feed from court)
(12.03 pm)
MR MYERS: -- ladies and gentlemen, the sort of things we have criticised this unit for are set out and laid bare in what happens there on this evidence.
I'm going to turn now to the final count on the indictment.
It doesn't matter, we say, ladies and gentlemen, how many counts are brought against somebody, it doesn't prove the case just because there's lots and lots of things said about it. We need to look at them closely and see what emerges. There may be things that repeat that you identify and that you rely upon on one view, some things you identify where you say, well, that may be relevant from the prosecution's point of view, and there are things where you say, that may be relevant from the defence's point of view, we recognise that, but it involves looking at them individually and most definitely not working on the basis, oh, there's a lot of stuff here therefore... We are confident you know how unfair that would be.
Baby QCount 22, [Baby Q]. My Lord, I just wonder, so we all know, using an expression I've used today, the direction of travel, I anticipate I should certainly be able to deal with [Baby Q]'s case before lunchtime, and I wonder whether we could break then and then I can conclude my submissions after lunch. This will probably take us to approaching 1 o'clock, something like that.
MR JUSTICE GOSS: All right. Are you happy to go on until close to 1 o'clock and then have the lunch break?
MR MYERS: It might fall just a little short of that.
MR JUSTICE GOSS: That doesn't matter, I'm not worried about falling short, I'm just worried about another 50 minutes or thereabouts for the jury without a break.
MR MYERS: We can always have a break.
MR JUSTICE GOSS: No, I'm just checking.
MR MYERS: Thank you, my Lord.
[Baby Q]. Born on 22 June 2016 at 4.09 in the morning, and weighed 31 -- at 31 days and -- at 31 weeks and 3 days' gestation and just over 2 kilograms, 2.076 kilograms in weight.
The episode, the event we're looking at, is on the morning of 25 June at 9.10 in the morning, when the records describe:
"Vomiting clear fluid nasally and from mouth. Desat and bradycardia. Mottled ++. Neopuff and suction. Air ++ aspirated from NGT."
We'll have a look at what these things mean when we come to the evidence.
Dr Evans proposes fluid down the NGT, and maybe excessive air, but fluid. And Dr Bohin proposes excessive air down the NGT.
In this trial, ladies and gentlemen, we dealt with a variety of incidents. Very different factually, many of them, very different issues come up, which is why it's important to regard them, obviously together, but also on their own facts. We do not disregard the importance of any episode experienced by a baby on the neonatal unit, but we do say this must surely be an event that has been taken out of all proportion and context when it finds its way into this case as an allegation of attempted murder. That's what we're measuring this against, an intent to kill in some way.
This is the note of -- if we could put up tile 103 from the [Baby Q] sequence, please. This is the note of [Dr A] that morning at 9.17:
"Called to neonatal unit at 9.17. Desaturation. Had just vomited."
Then it says:
"Desaturated to low 60s. Minor bradycardia. Bagged via Neopuff circuit in [whatever] on 100% oxygen. Soon returned to 100%. Confirmed required for PEEP. Moved to nursery 1 and commenced on CPAP. UVC in situ."
And then there's some readings and we move on. That's his note of this incident:
"Desat and vomit. Desat to the low 60s. Minor bradycardia. Bagged via Neopuff and soon returned to 100% oxygen."
The note that we have in Ms Letby's records is at tile 143. Let's have a look at that next if we may. On the left-hand side, just enlarge the large entry on the left. You'll remember Ms Letby said it wasn't there at the beginning of this and we'll look at this shortly, but this note completed -- written between 12.53 and 13.04, written for care given from 08.00. So far as the incident is concerned it says:
"09.10. [Baby Q] attended to by Staff Nurse Lappalainen. He had vomited clear fluid nasally and from mouth, desaturation, bradycardia, mottled ++. Neopuff and suction applied. Registrar [Dr A] attended. Air ++ aspirated from NG tube."
Thank you, we can take that down.
This isn't to diminish anything but that is it, that is this attempted murder. Okay? That's it. Not projectile vomiting -- issues develop later as we go into the evening when [Baby Q] became tired and there's a specific diagnosis associated with that and we'll have a look at that a little bit later. Again, we emphasise we don't disregard natural concerns, but it is an event, we say, that is unremarkable in itself and it was not regarded at the time as particularly serious by anyone dealing with it. Nowhere close to some of the other matters we're dealing with, not that that indicates what has happened in terms of the allegation.
But when Nurse Lappalainen was asked about this on 3 April, she agreed [Baby Q] stabilised relatively quickly from the episode and then we had this:
"Question: And although you kept and would have kept a watchful eye on him, it wasn't the type of incident that you were overly concerned about once it had been dealt with?
"Answer: No, I wasn't overly concerned, but I wanted him to be checked out as well, yes.
"Question: And after that, as you have said, there's no specific incident that took place that you dealt with thereafter?
"Answer: No. I had to take care of other infants and the ward."
That's it. There's a real danger that when it is taken and brought into this trial and the label "attempted murder" is attached to it, it may be regarded as more than it is, ladies and gentlemen. There must be, on a unit like this, all sorts of events in a 12-month period of a similar magnitude to something like this. So why is this one here? To borrow a formula we've had elsewhere in this trial, I think you know the answer to that. Yes? I think you know. This is here because the nurse on duty at the time was Lucy Letby and therefore she becomes the explanation for what has happened, even if there is no evidence of her having done anything at all to cause this to happen.
The deterioration, ladies and gentlemen, took place at about 9.10. Looking at the mechanics of this, Mary Griffith was looking after [Baby Q] from about 7.45. We say that there simply is no opportunity for Ms Letby to have done this -- sorry, Lucy Letby was looking after [Baby Q]. Mary Griffith is in the nursery. My mistake. But there is no opportunity to do this or to force whatever it is that is said to be forced down the tube.
You're familiar now with the layout of the nursery. It's visible to people, it's a relatively busy time of the day. How is something meant to have been done, for instance, that creates a reaction that takes place within a particular time? How do you control that? If somebody forces somebody into a baby, vomiting could be very quick, it could take time. We've not been told. But you may recall this allegation involves the suggestion that Ms Letby had set this up, she'd done something seen by nobody, left the nursery to go and look after her baby in nursery 1, and then came back when this happened.
How that is meant to have been managed, calculated -- how do you put something down a baby like that and then know what time you have to do what? We can all come up with guesses and suggestions, we've had no guidance on that. It's rather like the business about the air down the NGT. How much does it take, how long, how quick does splinting of the diaphragm happen. According to Dr Evans, on one view, on the last count, almost 13 hours, until you put the last dollop in that is.
So far as [Baby Q] is concerned that morning, there were some aspects of his condition -- leading up to the event at 9.10 there were some issues lurking as it happens. There had been bile during the day of 23 June, bile aspirated with blood that evening. Aspirates during that day and the night that followed. Perhaps we could just look at those, they're on tiles 61 and 62.
Samantha O'Brien was looking after [Baby Q] on the night shift and if we look down to the lower right-hand part of the chart for the night hours, this is for the shift from the 24th into the 25th with Nurse O'Brien looking after [Baby Q]. At this point minimal aspirates but if we go to tile 62, which follows on -- that might be my mistake.
It's the next feeding chart that I'm looking for, Mr Murphy, if you have that.
(Pause)
It's page 4 in the paper bundle. I wonder if we could reach for that, ladies and gentlemen. Sorry, Mr Murphy, I must have given you the wrong reference, I've got it down as tile 62. Take the paper bundle if you would, ladies and gentlemen, let's have a look in there. We're there now. It's on the screens. Thank you.
If we look there we can see aspirates carrying on in the morning with Nurse O'Brien from the night shift into the morning and I've identified it, ladies and gentlemen, these are small, subtle points you may think, you may think they don't amount to very much at all, that's entirely for you. They follow a period of some bile being produced. What Nurse O'Brien said about this when giving evidence on 3 April was that it was, as we go from the 24th into the 25th, it was "more than she would expect". She said that overall this was more than she would have expected.
MR JUSTICE GOSS: If you're looking in the paper bundle, it's not page 4, it's the very last page.
MR MYERS: Oh right.
MR JUSTICE GOSS: Yes. It's J24331 and I've written tile 62 at the top of that.
MR MYERS: Is it tile 62?
MR JUSTICE GOSS: Yes, it is tile 62.
MR MYERS: There we are. One way or another we get there. Thank you.
The point is, ladies and gentlemen, they may seem small matters, but because so often you're being told there's nothing wrong, the baby is very stable, the baby is fine, there's nothing to see, that's not entirely the extent of it. There are some issues with [Baby Q] and that feeds into what happens later on when we know he's transferred with a diagnosis of probable NEC, as it happens, and we'll get there, we'll get to that.
But Nurse O'Brien said this isn't -- this is more than you would expect with such tiny amounts being fed to [Baby Q]. You see those 0.5ml amounts going in on the NGT and yet when you see what's being produced by way of aspirates, it's quite a lot more. That's why she said it's more than you would expect and his blood gas as at 7.30 was not as good as before.
If we go to tile 70, please, Mr Murphy. If we go down there to the bottom of the entry on the right-hand side, the last entry:
"Capillary blood gas carried out this morning. Result not as good as previous, however acceptable. Seen by [Dr D], to continue."
All right, not as good, acceptable, but that indicates, doesn't it, the way things are there and the direction of it? So nothing dramatic, we don't suggest that.
But important for what happens next -- we can take that down, thank you very much, Mr Murphy -- because we come next to the point when Ms Letby goes to nursery 1 to look after the other baby that she was caring for. She's explained she hadn't fed [Baby Q] that morning, that she was concerned he should be reviewed given the aspirates overnight, and there are aspirates overnight, and Nurse O'Brien has said it's more than you would expect, and therefore she felt, if the ward round is taking place round about 9 o'clock, and there were doctors there, she would wait for that, let them review [Baby Q], and in the meantime she would check on BM in nursery 1, and she would have to do that.
This isn't, for example, her going off to a nursery where she had no commitment whatsoever: she had a baby BM in nursery 1, so she asked Mary Griffith to look after [Baby Q], and that is completely natural, ladies and gentlemen. The suggestion is this has all been set up and we've explained to you how unlikely that is and how on earth do you calculate that. And she went to nursery 1.
Let's go to the neonatal review on the screens for [Baby Q] just to see what happened and follow this through. The layout is at page 1. Just enlarge that please, Mr Murphy, thank you.
So we have Ms Letby in nursery 2 with Mary Griffith, with [Baby Q] and YM, and also she had a baby in nursery 1, BM, and [Nurse B] was in there as well. And you can see that one of the babies [Nurse B] was looking after is JA. So Ms Letby, having gone there, using what we have available as best as we can -- can we go to page 3, lines 62 and 63. And we see, having gone there, round about 9.04 or at 9.04, she's involved in giving a prescription to JA. Again, this is why we spent time looking at these. This is natural. The minute it's got the name Lucy Letby to it it's as if a kind of light comes on and a huge amount of prejudice is sent straight into what we're looking at. But she does what the nurses do to assist one another and then it's whilst she was there that [Baby Q] became unwell.
Well, as you know, we've said to you, ladies and gentlemen, she can't really win. If she goes off and leaves a baby in someone else's care and there's a problem such as this, that's her fault. If someone else goes off and leaves a baby in her care and there's a problem, as with [Baby I] at the end, the event that mirrors precisely what had happened with Ashleigh Hudson about an hour beforehand, that's her fault. If she hands a baby over to somebody else and, some time later, there's a problem, as happened with [Baby N], when he was fine, he's handed to Jennifer Jones-Key and he became very unwell about 5 hours later, that's her fault. And there doesn't even have to be evidence that she's there, the second pair of events with [Baby J], and that's her fault.
The event that follows, we've seen the nature of it and fortunately there was a fairly swift recovery until about 10 hours later, actually, when [Baby Q] began to get tired, and we'll look at what that led to shortly. But as to what it is -- and thank you for putting those up, Mr Murphy, we can take them down. As to what it is that Ms Letby is alleged to have done on this occasion, it depends a little bit on which expert you ask. If you had asked Dewi Evans at any time up to 2021 what had happened, he would have said, given what he put in his reports, the three of them up to that point, this was air being forced down the NGT. But, as you know -- and I was criticised for not identifying this, but we -- it's been corrected -- he did by the time of a fourth report say that it was fluid.
Dr Bohin seems to have stuck with air down the NGT, although she did make comments about the fluid that came out being inexplicable. Right. We're going to have a look at the fluid. It's on these small details that a great deal hangs in this case. A great deal hangs.
Fluid. So you can understand the point I wish to make, ladies and gentlemen, we say this is mucus, it's plainly mucus from the descriptions that are given when you put it together. That will block the way that [Baby Q] was breathing and that can have led to a desaturation at this point. Not air, not milk, it's not some unknown fluid, it is mucus. So you know where we're going with what I'm looking at.
Dr Bohin was doubtful about that, that it was mucus, and we're going to go to the evidence. Bear in mind she was doubtful about mucus on 6 April. We say it's very clear. And we do ask this question: is she reluctant to concede mucus because that actually provides an explanation? Because she was asked on 6 April:
"Question: You agree, whatever lies behind it, if it is mucus +++ and if it had to be removed by suction or pulling it out, that could actually interfere with breathing, couldn't it?"
And she said:
"Answer: If it was, yes, it could."
Right. So we got that far. Mucus could interfere with it. So what's the fluid? Let's have a look what people say. So we're going to rattle through some documents, ladies and gentlemen. Mr Murphy's ready to go. Thank you.
[Dr A]'s note, first of all, tile 103. We saw this earlier:
"Called to the NNU. Desaturation. Had just vomited."
Now, he explained, of course, this is something that he was being told. He wasn't there, but that's what we have there. He puts in "vomited". That's what he's been told. A letter has been -- attention has been drawn to a letter at tile 310, that he'd sent, a letter, a discharge letter, when [Baby Q] was moved to another hospital, tile 310, where he uses the expression "profuse vomit". Just scroll down, if you would, please, Mr Murphy. Go over the page, actually. There we are. Can you see there, ladies and gentlemen:
"Profuse vomit with desaturation".
A great deal's been made there. The prosecution have said, "Look, [Dr A] said 'profuse vomit'." Well, [Dr A] doesn't know, [Dr A] is using or paraphrasing words that were given to him in a letter he's writing, so he cannot tell us what this is. Yes, somebody has said to him or said something, but he didn't put "profuse vomit" in the notes, as it happens, but this is word from reported events. We've seen what Nurse Letby put in her notes -- I'll remind you again -- it's at tile 143, but remember she's in the bracket of someone who was told about this just after it happened, but tile 143. Thank you.
This says:
"Attended by Staff Nurse Lappalainen. He'd vomited clear fluid nasally and from mouth."
That's what we're looking at there:
"Desat, bradycardia, mottled, Neopuff, suction, air".
Of course, the order of that is going to be significant, isn't it? Neopuff before air. Just take note of that, if you would, ladies and gentlemen.
Actual evidence of the vomit came from Mary Griffith and Minna Lappalainen. On 3 April, in answering questions to the prosecution, Mary Griffith said that all she'd said was that [Baby Q] had vomited and Minna had started Neopuffing and she gave no more description than that. The person who gives detail of what this vomit was, the person who was there and dealt with it, was Minna Lappalainen, and she recorded this on that apnoea chart, which is at tile 101, so this is the evidence from a senior nurse at the time dealing with [Baby Q]. Dr Bohin was not there.
"Baby found to be very mucousy. Clear mucus from nasopharynx/oropharynx removed. Clear fluid ++. Oxygen via Neopuff given post-suctioning. [Dr A] emergency called to attend. NGT used to aspirate stomach by Nurse Letby."
I seem to recall Ms Letby wasn't sure that she had done that, but that's the note made by Dr -- sorry, by Nurse Lappalainen.
Probably the best and the most accurate record on this -- and she was questioned to establish what lay behind this on 3 April:
"Question: What did you see when you got to his cot?
"Answer: He'd been a little bit sick and there was clear mucus coming out of his mouth.
"Question: And in the next column have we got your note of what you saw, what -- [this is about the chart] -- what you found and what you did about it?
"Answer: Yes. It's just when there is a baby being sick -- and actually I went to him and attended him. Yes, he was being sick, but he was mucousy.
"Question: I'll let you read it for us."
She read out exactly what we have in the note here and she was asked:
"Question: Can we break that down, please? Very mucousy. What does that mean in this context?"
And she said:
"Answer: It's just the volume of clear mucus was just a large amount because it was coming outside of the baby's mouth.
"Question: And when you say 'clear mucus from nasopharynx/oropharynx --
"Answer: Basically, some of it was coming through the nose, because there's obviously a common channel in your pharynx, and also from the throat and then into the mouth.
"Question: And when you put 'clear fluid +++' what is that?
"Answer: The clear fluid means the mucus that I'm clearing, what I am clearing is clear, there's no feed in it, no milk, there's no other particles in it, just clear fluid, like saliva."
That was what she was asked in chief, that's when the prosecution ask questions, and we say this could not be plainer. This is mucus. And in cross-examination, she was asked:
"Question: Ms Lappalainen, you describe in the comment section that the baby was found to be, you put it, "mucousy/clear mucus"; do you see that?
"Answer: Yes.
"Question: Do you recall whether there was vomit as well or was that not vomit or do you have no recollection as to that?
"Answer: I can only recall clear mucus, like saliva.
"Question: And so where we've got the 'clear fluid +++' that you were asked about, is that a reference to the mucus that you saw?
"Answer: It is, yes.
"Question: Was that mucus that you also removed?
"Answer: Yes."
How Dr Bohin can have decided to take issue on whether that is mucus is mind-boggling because the evidence is absolutely clear. Why she took issue on that, when we all know mucus can, in light with her answer, provide an explanation for the desaturation, you may draw your own conclusions, ladies and gentlemen. But she wasn't ready to accept the clear evidence of Nurse Lappalainen and nor do the prosecution.
What we do have evidence of, ladies and gentlemen, as we go forwards in time with [Baby Q] is NEC. It's not for the defence to set out to prove one thing or another, you know that. But it is clear in this case that [Baby Q] became or was becoming unwell at some point, and we say as a result of early stage NEC, or he might have been. And again, you have been asked by the prosecution, and we agree with this, to look at all the evidence relating to a baby time and time again.
Look at the evidence if you would, ladies and gentlemen, when you come to it. [Baby Q] was at risk as a premature baby of NEC; it's something they're all on the lookout for. There'd been 2ml of bile with bile around 21.30 on 23 June. That's in the paper file in the care chart. There was a concern at the time. There are aspirates, not a lot, but perhaps more than expected during feeding.
Vomit and deterioration on the morning when Ms Letby was the designated nurse, a vomit we have established, we're talking clear fluid, we're talking mucus that had to be cleared, and a lot of it. I should say I've moved on rapidly to this and didn't deal with "air +++" but that is because by this point in the trial we have seen, repeatedly now, that when a Neopuff is used like this, that can put air into a baby. There's no way of distinguishing that from anything else.
Going into the night -- we can take the tile down, please, Mr Murphy. Thank you. Going into the night, [Baby Q] became tired, he was unsettled, and by the morning of the 26th he had produced bilious aspirates. Now, although you've been invited to take a broad look at the evidence on each of these counts across the evidence, form a general view, you haven't been taken yet to what [Dr A] identified, which we say is quite important, so we'll go and have a look at this.
But that morning, his temperature was unstable on the 26th. There were no audible stomach sounds where there should have been. You may remember [Dr A] describing there was bile in the OGT, orogastric tube, on palpation, he could see that, and he could feel swollen bowel loops, and an abdominal X-ray revealed dilated bowel loops. We had a bit of a debate about what time the X-rays were taken, but we get there that by 11.58 there's an X-ray and also at 5.05.
Dr Arthurs, Professor Arthurs, talked about those abdominal X-rays. He identified features consistent with NEC. He seemed to get a bit worse on them and then got a bit better, it was less so by the time he'd been moved to another hospital when he went to Alder Hey. His view was that this could be early stage NEC that had resolved or was resolving. He took that view, that was possible, that is what we suggested to him. That was the diagnosis of [Dr A], who's an experienced doctor, who dealt with this, and saw the bile and palpating the abdomen and the bowel loops. It was something that Dr Bohin would not agree with. Let's just have a quick look at where the diagnosis is set out by [Dr A] to remind you, ladies and gentlemen. It's not on the carousel, not on the sequence of events, but we have it -- we looked at it at pages 24199 and 24200.
I won't read through all of this, but this is the morning of the 26th, so we've had the episode on the morning of the 25th. [Baby Q]'s stabilised, becomes tired that night, the night is up and down. By the time we get to the morning, we have the findings, which I have summarised for you, but there's a lot of investigation. And we go over the page, we can see the diagnosis that's reached on the basis of all of this and there you have it, ladies and gentlemen, in the centre of the page. Above "plan" we've got there:
"Probable NEC. Bell's stage 2."
And you remember the Bell's stage of different features that help you identify NEC.
Owen Arthurs, and, it has to be said, even ultimately Dewi Evans agreed this was consistent with early stage NEC. [Dr A] identified this as probable NEC. Dr Bohin refused to accept this and we say, not for the first time. We say -- it's a matter for you -- but taking a very high-handed approach to the evidence of those actually dealing with the babies at the time. And it seems to be whenever she did that and dismissed it, that seemed to send things -- lend support to the prosecution by dismissing that it was mucus that could have caused a blockage when we can see there is that evidence, and we say that by dismissing what we have here is developing early stage NEC, but those dealing with [Baby Q], particularly [Dr A], made that diagnosis. Thank you, Mr Murphy.
Attempted murder. An intent to kill [Baby Q]. As with the other charges on this indictment, ladies and gentlemen, you have to be sure of what is alleged. We don't say that as some awkward test. That is the law. But we say, as with other ones, you have very good reason not to be, and we ask with this one, which is the one I'm looking at with you now, where is the evidence that gets close to that?
Please keep in mind that note from Minna Lappalainen, which is compelling, really, as to what had happened. Someone hasn't forced mucus down [Baby Q], have they? That's what it is. It's not a vomit of milk or something else, it's mucus that he's produced. Other people are around, even another nurse in the same room. What on earth is she meant to have done? No evidence of an attack or anything done with an intention to kill and clear evidence of early stage NEC. And then, even after the return from the other hospital, [Baby Q] returns to the unit and, until she leaves the unit, Ms Letby is there without incident and without anything happening to him.
My Lord, I wonder if this might be a suitable point to stop. If we had a shorter lunch, I could finish after lunchtime.
MR JUSTICE GOSS: Yes.
MR MYERS: If that's suitable to your Lordship and the ladies and gentlemen of the jury. It would assist me just to take a break, whatever time we start, because then I can conclude.
MR JUSTICE GOSS: Absolutely. That's not a problem for me, certainly, I hope it won't be for you. Shall we resume at 1.40, please? That's just over the hour, nearly an hour and 5 minutes.
MR MYERS: I won't be long into the afternoon, my Lord. I won't be a great deal of time, but a break would help.
MR JUSTICE GOSS: Don't protest too much, to quote Shakespeare.
MR MYERS: I'll stop protesting.
MR JUSTICE GOSS: Thank you very much. 1.40 then, please.
(12.38 pm)
(The short adjournment)
(1.40 pm)
MR MYERS: Ladies and gentlemen, we are very grateful for the close attention you have given to this case and to what we have had to say on behalf of Ms Letby at the end.
It's taken some time and it is detailed because there has been so much to consider in this trial and because the detail is important. And even taking the time we have taken, I have taken, we've looked at only a small part of the evidence in this case, ladies and gentlemen. We, the defence, have endeavoured to look realistically at enough of it for us to provide you with a reasonable summary, whilst setting out the case for Ms Letby.
This is the case from the defence perspective, just as last week, you heard the case from the prosecution. There is so much material in this case, it is difficult to refer to all that can be relevant and I'd be here talking for a good deal longer than I have been. And it isn't difficult for someone to pick out one item or another and give prominence to that, depending upon which position they are coming from. That is why, ultimately, the decision about what evidence is important and where it takes the case is for you. It's not for me or the defence, it's not for the prosecution, with respect to his Lordship, as he has directed you, it's not for his Lordship, it's not for anyone outside your number.
We are bound to say that you will be able to assess the way the evidence is used and where it has been used to undermine Ms Letby. And where that applies, please use your knowledge of the case and your knowledge of the evidence, together with the proper directions from his Lordship, to form your own opinions.
You have spent so long with this case, looking at this evidence, and we entrust you, with a proper analysis of it, that we know you will perform because you have put an enormous amount of your time, in all sorts of circumstances, over the last 9 months of your lives into this, and this is for you now.
The detail and being able to see it in a fair and balanced way and from the perspective of the defence, ladies and gentlemen, we say, is crucial for this to be a fair consideration of the case. In this case the dangers of being influenced by factors that are not fair, we say, are clear and they are substantial: emotion, suspicion, judging Lucy Letby by standards that are not applied to anybody else, unrealistic standards, and a reliance upon the fact that she was on the unit as proof of far more than that fact can possibly amount to.
We recognise, ladies and gentlemen, the evidence comes in many forms and some of the non-medical aspects will raise genuine questions for you, such as the Facebook searches and the handover sheets and the cards photographed. But even there, we say, the patterns that should exist if the prosecution theory is correct do not: they are incomplete and inconsistent. We say that is because they do not go to support what is alleged.
You, ladies and gentlemen, will decide what is important, but we maintain that it is the medical evidence that is crucial because it's that upon which the allegations of harm are based and upon which, ultimately, you have to be sure, insofar as those allegations can be proved, and it addresses what did or didn't happen in the cases we are looking at, or it fails to.
When you come to the medical evidence, ladies and gentlemen, we ask you to keep two things in mind. First, that the lead clinicians, certainly from the Countess of Chester Hospital neonatal unit, are not neutral, disinterested parties, they are deeply involved in what happened, and we say that at times they have said things deliberately to prejudice Ms Letby's position. You will assess that and I'll return to the topic of the Countess of Chester Hospital shortly.
But you've also had a huge body of expert evidence and, ladies and gentlemen. However this is approached, this is a prosecution case that relies fundamentally upon the evidence of its experts, and you have seen that. Assessing this will be a matter for you. But we say, from an assessment of the evidence, that to a great degree this has come from two witnesses who we say are not experts in key areas of what they have held forth upon and whose evidence, we say, has proved to be partisan and has been directed towards supporting a theory of guilt rather than working with the facts.
Leading the way and leading the expert evidence in this prosecution case, and it would appear in the course of the investigation, is Dr Dewi Evans, an expert witness who has been criticised severely, we say, by a judge of the Court of Appeal for behaving in the type of way that we have challenged him over in the course of this trial in front of you for months.
We say his reports and opinions have led the way for other experts to follow, and the prosecution still support him and base their case upon him. That, we say, is incredible. But be in no doubt, his evidence, we say, is at the core of the expert evidence you have been asked to rely upon by the prosecution, and they continue to embrace his evidence and rely upon it to the very end.
Reliance by the prosecution upon Dr Bohin is no remedy. You have seen how she has approached this case and I say you -- and I repeatedly say you, because it is your opinion that matters, not anyone else, it doesn't matter what they think. This is the strength of the system we have: wherever it takes us in this case, you are (sic).
And we say Dr Bohin has been capable of being highly partisan, reflecting many of the elements of the approach of Dr Evans, albeit more cautiously. And even when we come to a witness such as Dr Marnerides, he is guided inevitably, as he has accepted in many cases, not all but many, by the findings of these two witnesses and so the expert evidence in this prosecution case feeds upon itself.
Looking at the case more broadly, trying to deal with this case by taking shortcuts through the evidence would be deeply unfair. Now, of course, you are entitled to look at similarities and look at the cases in general and you are directed about that and we recognise that. Some of the events you are dealing with do have similarities and you can take that into account, whichever direction that takes you in, but there are many differences too. And the particular facts of each of the counts on this indictment, ladies and gentlemen, need to be looked at carefully because what happened and questions as to the medical condition of the babies and questions of medical failings, when they arise, are distinct to each.
These are the most grave allegations. Each one needs to be considered with care, each one with care, and we are confident you would not take any other view given the enormity of what this trial is about.
When we come to the basis of the case, ladies and gentlemen, you have seen over and over again how the mere presence of Lucy Letby alone really has become the sole explanation for what has happened and how her name has been used as if that alone explains what has happened, sometimes, apparently, without the need for any other evidence at all, save presence and an event taking place.
One thing that is constant throughout this whole case, above all else, is the fact that Ms Letby was not seen to do any of the acts alleged against her. You've been directed on circumstantial evidence and you're able to construct your opinions from that, but it is crucial to keep that in mind. And when we say the acts, we mean the acts, not standing nearby, not something having happened that can be incorporated into an allegation, the acts.
That is crucial to keep in mind. It isn't all that you have to look at, it isn't the answer to everything, we're not saying that, but in a case where you have been asked to look at coincidence by the prosecution, that has to be the coincidence above all others, doesn't it? It has to be, every time. And we say there is a reason for this coincidence, for the fact there is no direct evidence of her actually doing any of the acts alleged against her -- and we say the circumstantial evidence doesn't get us there, but we're talking about the direct evidence -- and that reason, however unwelcome it may be in some quarters, is that she did not do this. It cannot keep happening like that if she did.
And in a case in which you have been asked to look at coincidences, ladies and gentlemen, we urge you to keep this one in mind too, that between June 2015 and June 2016, the neonatal unit at the Countess of Chester Hospital took more babies than it would usually care for, and it took babies with greater care needs, on the evidence. We have heard that repeatedly.
In that same year there was an increase in the number of deaths and, we are told, the type of collapses we have been looking at in this trial. Those two facts are connected we say.
What didn't change was Lucy Letby. Ms Letby had been a neonatal nurse for years. That was what she was dedicated to. She cared for hundreds of babies. She didn't suddenly change her behaviour in 2015 to 2016. What changed was the babies cared for on the unit in terms of their numbers and their needs and, we say, the inability of this unit to cope.
But nobody is going to come here and admit that to you, are they? "One tends not to spread news about the mistakes we make." The one thing we can agree is accurate from the lead prosecution expert in this case:
"One tends not to spread news about the mistakes we make."
For each of these cases, ladies and gentlemen, we ask you to consider the circumstances in general, and these are things we ask you to look at each in case, whether you can be sure of the allegation in terms of how realistic it is that Ms Letby would, or even could, have done what is alleged in the circumstances and we say it never is, and in terms of the intent alleged, which is equally improbable for the reasons we have been describing to you as we have gone through the evidence at the conclusion of the case.
But also in each case we ask you to consider whether it is possible that the medical condition of the baby whose case you are considering could account for what happened and/or whether failings in medical care could possibly account for what happened because we say -- and this is a matter for you entirely, but we say these are significant factors across these cases. And we say there is powerful evidence of one or the other or of both on various occasions.
You have seen and heard the evidence, members of the jury. No one or not many people are going to turn round and say, "Yes, we got this wrong". A few exceptions have. That is not going to happen, so you have to assess it. But we say we have identified failings in care, serial failings in care, on the evidence. And I'm going to identify some that we can, and you may not have believed it before this trial began, but at the very least this includes [Baby A] and the delay in fluids and the line that was placed too close to his heart, not in the best position and not moved, and, sadly, he died when that line was used while still in the wrong position.
[Baby C] and failure to react to 24 hours of dark bile-stained aspirates and who didn't open his bowels for the 4 days of his life. No one will admit any fault there. We ask you to look closely at that evidence.
[Baby D] and the failure to give her or her mother antibiotics when it is recognised that that should have been done. [Baby D] who was born with pneumonia, lived during her brief life with pneumonia, and died with it, having breathed without support for very little of her time.
[Baby E] and the failure to intubate or give a blood transfusion in time, despite a medical emergency.
[Baby H] and serial failings in her case, serial failings: a 30-plus-hour delay in giving surfactant, delays in intubation, a butterfly needle left in a hazardous position, the delay in inserting that second chest drain and how it was placed through, we say, the wrong part of the chest wall. And it was, we've seen the guidelines, we've heard about them: insecure and with a tip that you can see moving about within the chest cavity on a series of radiographs over a series of days, able to make contact with the heart and the vagus nerve, and able to trigger desaturation or bradycardia. And the experts have accepted that; what they won't accept is that it happened on these occasions.
[Baby J] and poor management of the stomas. Infection risk.
[Redacted].
[Baby N]. Failure to have factor VIII ready when he'd been identified as a haemophiliac and, we say, the serial inability of medical staff to intubate in circumstances where a more adequately experienced professional encountered no difficulty and that professional, Dr Potter as it happens, was clear in his evidence, talking about something he does for a day job, that that was not down to a reduction in swelling.
[Baby O] and the question of the liver injury, a matter that is not accepted and is hotly contested, we recognise that.
Uncontested, really, when we come to it is [Baby P] and the delay in taking a chest X-ray, the failure to identify a pneumothorax and to take action, that led even Dr Bohin to conclude in her reports as follows:
"My impression of the care afforded to [Baby P] after the collapse on 24 June is that it was muddled. There were unacceptable delays in recognition and treatment of the pneumothorax, the ventilatory strategy used, and the use of a high-dose adrenaline infusion was unusual."
And mistakes -- an initial event with ventilation that caused a pneumothorax, we say. Mistakes with the initial event, ventilation, causing a pneumothorax and then getting the doses of adrenaline wrong. That led even Dr Evans to conclude, in his three pre-trial reports, that death was the result of complications from the pneumothorax.
That captures so much in this case when put together with the other material. We're not identifying these as an excuse. They play a part when you weigh up the cause in this case. They also play a part when you weigh up the question of blame in this case. Because, for example, as we've been looking at this morning, when all of that went wrong with [Baby P], all of that, who gets the blame? And on what basis? Bases like the dislodgement of a breathing tube. That is undocumented where you'd expect it to be documented, if it really happened, and which coincides with the very point when failings in medical care were having a critical impact on [Baby P]'s condition.
Don't let this be played down or for it to be conveyed that somehow it doesn't matter. Even looking at those matters that cannot be disputed, which is most of what I have just identified to you, in this one unit over 12 months we say these are occasions where we together in this trial have been able to identify sub-optimal care. We do not know what errors in monitoring or observation have played a part, we can only get as far as the evidence gets us, we cannot or must not speculate, but what we know is awful in any ordinary situation looking at that.
We say that we collectively have got far enough to show that there was a terrible failing in care in that unit that has nothing to do with Ms Letby and that impacts upon one or more of these accounts in various ways. But the person in the firing line for blame now is her and you have seen how it has been stirred up and launched in her direction and supported by evidence in key areas that has been sometimes inconsistent and sometimes incredible.
When I say that, ladies and gentlemen, think if you would, please, about discolouration in this case, how accounts have varied, not just across the witnesses but from the same witness or where a witness has described nothing remarkable at the time in circumstances that make such an omission as extraordinary as the discolouration those witnesses would later claim to have seen.
[Redacted].
Think, if you could, just as an example, of how, for example, Melanie Taylor and Sophie Ellis have placed -- it's a matter for you how much reliance you put on this -- placed Ms Letby in a position with [Baby C] on count 3 that actually effectively swaps her for the position of Sophie Ellis on the account originally given by Melanie Taylor to the police. Sophie Ellis, to be fair, has been consistent that she wasn't there. But Melanie Taylor's account changed and came into line with that. And both, in evidence here, are inconsistent with the account that has always been given by [Nurse B], which actually has Ms Letby elsewhere at the crucial time.
That is the evidence. However anyone feels about it, that's the evidence on that. Think of how Ms Letby is the one blamed now, even after the evidence we've had for [Baby G] being left behind a screen without a monitor working, after Dr Gibbs and Dr Harkness had gone without telling the nurse and after those seven attempts at cannulation. And Dr Gibbs does not dispute that on the basis of [Nurse B]'s evidence and Dr Harkness says he simply doesn't know, he can't remember.
We know she did not do what was alleged at the start of this, that seven attempts at cannulation could well have triggered the desaturation, and that the reason [Baby G] was found at the time that she was was because it was Ms Letby who raised the harm, and she is being tried for attempted murder for having an intent to kill in those circumstances.
Think of how many of the events in this case do not, we say, begin to fit with an intent to kill, whatever the offence alleged, and that applies equally, we say, to those counts relating to [Baby F] and [Baby L], counts 6 and 15.
If this was such an effective and secret method, these are the insulin counts, why was it not used elsewhere and why not with devastating effect here? And why not in increasing doses rather than a diminishing one, a reduction to 25% from the first to the second on the analysis, if that is correct? You were asked what better evidence of intention could there be, by the prosecution, on the basis of an increase. Well, what better evidence could there be that this is not about an intention when you look at that significant decrease, whatever has gone on there?
And how, ladies and gentlemen, was any of this meant to have been done? Sometimes the unit was quieter than others, but at others these allegations are attached to circumstances that make an attack, we say, unbelievable and sometimes when Ms Letby is elsewhere and sometimes when the timings cannot really fit at all, for example with [Baby M] that we looked at yesterday. That's just one example. Or where she is in full view of other people who are there, like with the [Family of Babies A & B], like with this morning, when we were looking at the cases in the nurseries and particularly with [Baby P].
Once you begin to question, and we do ask you to question how any of this was done in reality, instead of an allegation thrown out verbally, we say that you will see how unrealistic it is, and all of that before we come to consider fairly what we described right at the start of our opening to you, ladies and gentlemen, which was dozens and dozens of alleged incidents of force-feeding, of pushing air down tubes, injecting air down tubes, of spiking insulin bags repeatedly, performing assaults with unidentified objects in a unit where anyone can walk into any room and any moment, and they do, and where for nearly 12 months we are told Ms Letby is under suspicion by an ever-increasing number of doctors. And not one occasion when there is evidence of her doing one of the harmful acts alleged against her.
We say that when you consider the evidence in this case and the intent that is alleged on each count, it is a case that has been constructed out of unrealistic allegations, factually. Much of the evidence has proved to be incomplete, inconsistent or absent when one comes to look at the allegations that have to be proved, and in many cases the allegations rely upon inconsistent standards, you have seen that over and over again, and we say, and you will have to assess, as you do all things that we say, partisan and poorly reasoned expert evidence.
We say the whole prosecution case is driven by a relentless presumption of guilt that has acted to compensate for gaps in the evidence, is capable of being deeply emotive and desperately prejudicial.
It is easy to lose sight of the reality of the person at the centre of this and in many ways there's only been focus on a particular characterisation of her, the person we say the prosecution have endeavoured to create in front of you in pursuit of their case. You need to look at the evidence, if you can, to reconstruct the person she was at the time, not the person she's been made in the last 7 or 8 years, but the person she was when you measure these allegations and the enormity of them against her.
Dr Hunt, we mentioned this yesterday, talked about how she said:
"I remember Lucy in the kind of the step down from the ITU, high dependency unit rooms, crying, with another nurse, I don't remember which other nurse. It was very much along the gist of, 'It's always me when it happens.'"
A normal reaction in the circumstances. That's not been done to create a misleading impression. That is evidence from the time from how she was.
That note, "Not good enough" it says, doesn't it? For all else it contains, that is how it's headed. Just for her, that's not a defence statement, it's not written for anyone else. "Not good enough." We say that is an insight into a genuine state of mind because this is clear, isn't it: Lucy Letby wanted to be good at what she did, she wanted to excel at it.
If we go back to the person that she was, not the kind of caricature that has been created by the use of words before you, you've heard witnesses who talk about her at the time. Eirian Powell in particular but others. She wanted to be good at what she did. She wanted to excel at it and, judging by all we have heard, that's how it was. And then this happened. So it's little wonder that she was distraught and the evidence of that is painfully clear and in no way artificial.
So ladies and gentlemen, when this woman is left in your charge, we would ask you to keep that in mind, not the picture conjured by the prosecution in this trial out of words and descriptions, not an impression formed out of how they treated her over weeks of questioning before you -- this is for you, other people's reactions don't matter, you -- how she was treated over weeks of questioning in a way they treated nobody else, measured by standards that have been applied to nobody else. Please keep at the forefront of your minds the person she was at the time these events were happening, not what she has been reduced to now.
I am saying this on her behalf because it needs to be said because absolutely no one else is going to say it. She was hard-working, she was deeply committed, she had a happy life, she loved her work and she was there much of the time, because she was committed, because she loved being a nurse, and so she was there at the time these incidents happened, and for a system, a system that wanted to apportion blame at a time when it failed, she was the obvious target, on the evidence not because of what she was seen to do, oh no, on the evidence because she was there.
We ask, ladies and gentlemen, entrusting her to you, for fairness and balance and a realistic assessment of the evidence in this case, based, we ask, and we are confident you will apply, upon a presumption of innocence and not a presumption of guilt. And if do you that, you will reach the right verdicts, ladies and gentlemen, and we say that the right verdicts are verdicts of not guilty and those are the verdicts we ask you to return.
MR JUSTICE GOSS: Thank you, Mr Myers.
Mr Johnson, Mr Myers, there are some matters that I want to address, including my second set of legal directions. I'm just wondering whether -- I don't know how long this may take. I'm just thinking of the convenience of the jury. I'm going to ask them to retire at this stage. Perhaps the best thing is just to ask them to go into the room at the back at the moment and we'll see where we are.
MR JOHNSON: Yes.
MR JUSTICE GOSS: All right, members of the jury. I'm conscious of the fact that you started earlier this morning, but as you know, we are approaching the penultimate stage, which is my summing-up, which I've already indicated to you is going to take, I'm afraid, more days. You're going to have to listen to my voice for days next week. It's a four-day week next week. I will not complete it in the sense that I will not be sending you out on Thursday afternoon. It'll be early the following week. All right?
But I just want to clarify -- because you know you're getting another set of written legal directions. Can I just ask, have you still all got your first set of legal directions? I think when I start my summing-up, be that this afternoon or on Monday morning, we'll just do a bit of bookkeeping, so to speak, and tidy up and make sure we've all got the right documents. All right? Thank you very much indeed. Would you then go into your room? The usher will bring you back into court when you're needed again, thank you.
(In the absence of the jury)
Discussion
MR JUSTICE GOSS: If I could deal with the legal directions. You got yet another version, I'm afraid, yesterday. I assumed that, as far as you were concerned, was acceptable, Mr Johnson?
MR JOHNSON: Yes, I think your Lordship sent the message that silence was --
MR JUSTICE GOSS: Yes, it was. I just wanted to make sure -- and I couldn't see any more typing errors or grammatical errors there. So that will be -- I'm going to give a copy now to the clerk. Please, copies for the jury. These are the second set of legal directions.
Are there any matters you want to raise, Mr Johnson?
MR JOHNSON: There are several matters arising out of what my learned friend has said, but I thought that the best way of doing that was to give your Lordship a document and my learned friend, obviously. That's mostly done, but it's not completed. I can certainly disseminate part of it which deals with --
MR JUSTICE GOSS: No. Really, this is why I was speaking with careful language, just to see whether the jury -- that's why I should say that they should go out there for the moment.
MR JOHNSON: It's not something I'll be able to complete because it's got to be referenced with transcripts and everything because, as -- well, we're suggesting there are a number of significant things that have been said which do not reflect the evidence --
MR JUSTICE GOSS: All right.
MR JOHNSON: -- and need to be resolved.
MR JUSTICE GOSS: I was reluctant to start, in any event, summing-up, even with introductory remarks, which is what I could have done this afternoon. They've been listening many days now.
MR JOHNSON: Two weeks, really.
MR JUSTICE GOSS: I think I'll send them home and tell them to come here on Monday morning. The only thing I'm querying, and I might ask the usher to ask the jury before they are brought back in, is whether, as far as their ability to concentrate is concerned, whether they feel it would be better to start slightly earlier and have two breaks before the lunch break or whether they would rather stay as we are at 10.30 and just have the one break. So I don't know, but I was just detecting after about an hour, an hour and a quarter, some of them looked like they might want a break and that might be another way of doing it.
Would you mind doing that, asking the jury so that I can take it from there?
MR JOHNSON: There's another issue that's bubbling away, which I don't anticipate for a moment is going to cause any controversy, but we're acutely aware of the potential for a complete disaster in the sense of the jury being given access to digital material in retirement that has not been given in evidence. We know that Mr Murphy's kept a very careful digital audit of precisely what they've been shown. And over the last 2 weeks, on this side, we have made what we feel are comprehensive efforts to identify every last piece of information. It's all been scheduled and we have passed the schedule over and we understand that, for obvious reasons, consideration of that schedule hasn't yet been achieved.
So that's something, first of all, that's something that's going to have to be done. But secondly, what we are going to propose in any event -- so we would propose that that is agreed so that there is a clear record of precisely what has gone in. It'll have to be done before the jury goes out, we query whether it has to be done before your Lordship starts, probably not. And what I would propose to do as an absolute double belt and braces would be to somehow identify the digital file to which the jury has access through the iPads and to formally exhibit all the material on that file. So even if there is a document on the file that hasn't formally been exhibited in the trial, the fact that the jury has access to it in retirement doesn't have the catastrophic consequences that otherwise it could do.
Now, that will require somebody from the defence accessing the file with the assistance of Mr Murphy and just checking it against the index. So I'm hoping, by various routes, to achieve absolute certainty that for some technical reason these proceedings aren't compromised.
MR JUSTICE GOSS: The likelihood is, barring some unforeseen event arising between now and a week on Monday, that that stage will be reached on Monday week.
MR JOHNSON: Yes. Oh, I would anticipate so.
MR JUSTICE GOSS: Okay, that's fine, thank you. That raises another matter that I was -- links nicely to another matter.
In my jury bundle 1 index I have tab 9, a table of Facebook searches, June 2015 to June 2016. I don't seem...
MR JOHNSON: I haven't actually got it. Mine's blank as well as it happens.
MR JUSTICE GOSS: Yes. I haven't got it. Is that the defence one? Is that --
MR JOHNSON: Yes.
MR MYERS: Yes, it is, my Lord.
MR JUSTICE GOSS: D27 is that?
MR MYERS: I'll just check.
MR JUSTICE GOSS: You know, with the digital case system I struggle sometimes, especially when there's so much material on it now. I tried to find it there, but I couldn't.
MR MYERS: Yes, it's meant to be bundle 1, table 9. Sorry, divider 9. D27. But D27 is a reference that we have with Mr Murphy, D simply means the material introduced by the defence, so D27 is the 27th. They were all handed out, but if it's the case that your Lordship doesn't have a copy, a copy I'm sure could be provided to your Lordship.
MR JUSTICE GOSS: If I was given it, I just can't find it. It's probably my fault.
MR MYERS: I'm sure we can arrange for your Lordship to be provided with a copy.
MR JUSTICE GOSS: If you could, please, because obviously I shall want to refer to it.
(Pause)
That's good, I'm glad I asked. We will sit the hours we've been sitting up to now and not a 10 o'clock start. Thank you very much.
Right. Apart from the matter that you've already referred to, is there anything else you want to say?
MR JOHNSON: No, thank you.
MR JUSTICE GOSS: Is there anything, Mr Myers, you would want to say?
MR MYERS: We would like to see Ms Letby if we could, please.
MR JUSTICE GOSS: Certainly. I'll have the jury brought back into court and ask them to be here at 10.30 on Monday morning.
(In the presence of the jury)
MR JUSTICE GOSS: Thank you for your patience and thank you for addressing the issue that I asked of you: 10.30, we will stick to the normal court sitting times and probably not going much beyond 4 o'clock on any individual day in any event, but 10.30 starts, mid-morning break, lunch and so on. All right? That deals with that. But I'm not going to start this afternoon. You've had a long week, listening to a speech, and mine is a form of address in that it's a single voice, obviously, speaking to you. And as I will tell you on Monday morning when I start, it's going to be very detailed and very dense, providing you with a chronology of events and some references, and I'm not going to give you any more documents apart from some directions of law that relate to certain aspects of the evidence and I will highlight those and you'll have copies to go with your other directions of law.
But I think that otherwise, you should have, each of you, all the documents with which you've been provided, you should have all your own notebooks and everything like that, and if you need more notebooks for when I'm summing-up to you, simply ask the usher and you'll be provided with more paper, big or small, whatever is more convenient for you. Whether you take any notes, entirely for you. I'll explain all that to you on Monday morning.
Thank you. It's an early finish for you, but please be ready to continue at 10.30 on Monday morning and, of course, continue to observe your responsibilities as jurors. As you will well understand, we are now entering a very critical phase of this case -- every phase is critical, but for something to go wrong at this stage would be a disaster for all sorts of reasons. Thank you.
(In the absence of the jury)
MR JUSTICE GOSS: Someone is going to come and visit the defendant. Thank you.
I'm just wondering, Mr Johnson, whether we should sit at 10 o'clock on Monday.
MR JOHNSON: That's probably a good idea.
MR MYERS: It probably is.
MR JUSTICE GOSS: Officer, actually, the court will sit at 10 o'clock on Monday. The jury will not be here, will be ready to start at 10.30, but the court will be sitting at 10 o'clock. Thank you very much.
Mr Myers, I don't know whether there's a spare copy of that document from somewhere.
MR MYERS: Mr Maher is going to check it's the right iteration before it comes to your Lordship.
MR JUSTICE GOSS: Thank you very much.
MR MYERS: We can deal with that this afternoon, my Lord.
MR JUSTICE GOSS: Thank you.
(2.32 pm)
(The court adjourned until 10.00 am on Monday, 3 July 2023)