Killer nurse Lucy Letby loses fresh appeal bid

Yes Mr Myers may it please you my lords my lady Miss fancy and I appear on behalf of Lucy leby replies for leave to appeal against conviction for an offense of attempted murder returned by jury after trial on the 2nd of July this year before Mr Justice gos at the Crown Court at Manchester and respondent represented by Mard friends Mr Johnson King's Council and Mr driver as they were at Tri yes my Lord is the court so um so you understand but so letby understands and indeed anybody else who's listening we've had the opportunity to

read well into the papers we've been helped by your very detailed grounds of appeal Mr Johnson's respondents notice um and it hardly needs saying that this case is very well known to probably most people in the country so the the background to it you Can deal with in very short order I'm grateful the Lord and I think I should also say now um and will say again um this case has a very narrow Focus today um the underlying convictions that were sustained last year and all the public discussion has been more recently about them um

has nothing to do with what we're talking about today you're simply here in relation to a single application you made and Mr Justice goss's refusal of It my Lord respectfully that's correct and that's exactly how we proposed to deal with it yeah um and whilst I have as councelor inevitably does have a plan of the matters to go through we shall of course respond to the court if if the court finds I'm dealing with matters that are unnecessary or prolix I hope to avoid that but I appreciate position take own course Mr M so I

shall follow the Court's guidance on that um it's important perhaps that I do set out the Ground of appeal uh as your lordship has identified it is narrow and it's this that the learnard judge was wrong to reject the application made by the defense at the outset of the trial to stay the indictment as an abusive process that is the way it's placed in the grounds of appeal and that is what deal with and subject to how your Lordships and my lady would wish us to proceed what I shall do as expeditiously as I properly

Can do in the circumstances is to deal briefly with the type of media material that underlies the application and I shall do that briefly because I know the court has been provided with a detailed schedule of material as the court was in the Crown Court I shall Endeavor to explain why we respectfully submit that this does fall under either or both of the limbs of abusive Process and we shall address specific issues that have Arisen in the circumstances of this applic application considering the ruling of the Learned judge and the respondent's notice and to assist

my Lord in addition to going through or outlining what is in the grounds of appeal those issues that arise that the court may wish to hear our response upon are first of all how we say say that unfairness arises irrespective of the accuracy of media Coverage I'll develop it when I get to that if I may secondly why the approach to meeting Prejudice as set out in the authority of Montgomery and hm Advocate 2003 one appeal cases 641 relied upon by the tri respondent at trial and in its application is no remedy to Prejudice in

this case why we say it is not respectfully Thirdly why the submissions we advance on behalf of the applicant are not a mandate for those convicted of the most grave and serious crimes to be immune from future prosecution because that's one matter raised by the respondent and then finally why comment or the comments we identify by the police and the prosecution can properly come for consideration under the second limb of abuse whether or not one Categorizes them as bad faith or misconduct and in embarking upon the application my Lord we recognize that anyone with experience

of the criminal jurisdiction and abusive process uh will will know if may put this respectfully what a shield wall of app pellet Authority I face in making the submissions that I do but we do submitt it as an exceptional case with exceptional media interest and therefore exceptionally Unfairness is capable of arising notwithstanding the safeguards that are often employed to deal with matters that we raise before turning to the media material which I will deal with briefly succinctly may I make these observations at the outset my Lord first of all as the court will have in

mind we're dealing with the impact of media coverage and public comment Arising out of the original convictions at the first trial upon the second we take those convictions in these submissions as a given and we will make reference to the factual accuracy of the coverage but it is important as the court knows um for me to ident identify that the applicant maintains and has maintained she's not guilty of the offenses and so I simply make that clear so that in no ways my treatment of the convictions in taking them as a Given in the context

of this application a concession on her behalf it's right that I say that the court May well understand that in any event but I say that secondly my Lord the application focuses on on matters independent of the evidence in the trial itself that's Apparent from your lordship's observations at the upet now the evidence and the course of the trial are set out in detail in the advice and grounds but the application Relates to the question of prejudice arising from media coverage it's a narrow application and therefore unless called upon to do so we do not

refer to the detail of the case itself in this hearing but I emphasize that isn't to disregard the enormity of what the trial was about or its impact and the experience upon the family of baby Kay and no disrespect is intended By Us by the fact that she and those events feature so Little in this application it's because it is a narrow application on one point of law and the final initial observation before I move to the application is this that that it may be easy for some to forget that we're going back to the

media environment of August and September 2023 and that's a very different environment from the one that exists now and at that point um it was we respectfully observe Saturated with unadulterated vitriol towards Miss letby and that ran from those in high political office to the police representatives of the prosecution and across every media Outlet so the question of whether the trial that followed could be fair necessarily is considered in that context very different from the one applying now perhaps um the basic statement and I don't propose to rehearse the law unless there Are points the

court wishes to raise with us but I just say this the basic statement of the power to stay proceedings on the basis of abusive process um we set out in paragraph 64 of the perfected grounds comes from the authority of the crown and Maxwell 2011 one weekly law reports 1837 um it's well established the power to stay proceedings on the basis of abusive process may arise in two categories First where it will be impossible to give the accused a fair trial and second where it offends the Court's sense of justice and propriety to be asked

to try the accused in the particular circumstances of the case and our submission my Lord is that the media coverage following trial one particularly in the immediate aftermath and the attendant comment contain elements that fall across one or indeed both of those Limbs when the matter was dealt with before Mr Justice GS and in setting it out in the perfector GRS we placed the media material in three categories set out in paragraph 61 the the first was that it led to overwhelming and IR remediable prejudice to the defendant on the basis of the extent and

detail of coverage and comment across all forms of media in the aftermath of the verdicts and that included comment by witnesses Witnesses who might give evidence at the retrial at a time when a retrial was UNC under consideration that was the the first area of complaint the second was that there had been highly prejudicial and emotive public comment by police officers charged with the investigation and by the crown prosecution service or at least one representative at a time when retrial Was under consideration and the third area of comment was that public statements by police officers

charged with the investigation as to further potential Crimes by the defendant and investigations of these had been made at a time when retrial was under consideration and there was media coverage of that those characterizations are based upon the material Set out in the schedule and also the matters related to the medical witness doctor jram all within the composite bundle it's detailed and relatively lengthy and I don't propose to start to recite all of that now all I do so that when I make the submissions I do it is apparent to why we make them and

also keeping in mind the public nature of the hearing is to provide a very brief summary of the type of Material and it will be brief some of the material we submit we said this there's six types really but some of the material is straight uh hostile comment and I'll give the item numbers items 8 and 16 and 41 are examples of that on mainstream television for example Panorama viewed by millions or programmed loose women popular media program in which the defendant was referred to variously as Evil or depraved and the loose women treatment at

item 41 was Lucy letby born Evil And discussion like that that's a general comment secondly comment by the crown prosecution service or at least one representative set out in items one which is from Sky News and nine which was Channel 4 News coming from the prosecution describing the defendant who he recognized had just been convicted of These crimes as devious coldblooded calculated manipulative and cunning someone who has was perverting her skills and weaponizing her tools and when we come to it the complaint is that that is said in the in the context of that representative

and the prosecution considering a retrial whilst that was happening we also observe and I'll develop this point letter as a far cry from factual matters that type of comment third comment by investigating officers the court will find this variously throughout the schedule but at items two and six nine and 27 by way of example from senior officers describing still engaged in the investigation still engaged in the decision of whether or not there would be a retrial describing the applicant as Manipulative getting away with murder horrible horrific evil cool devoid of emotion fourth principally by the

police reference to ongoing investigations appearing on Sky News at item one ITV News at item five daily mail at item six and the independent website at item 14 outlining the senior officers the Investigation continued into up to 4,000 cases not suggesting that all would be offenses but there would be a thorough review and that figure repeated itself we observe in passing nothing to do I'm sorry to interrupt my Lord um maybe my misunderstanding um the 4,000 cases is 4,000 children very very young babies who had been admitted to units at which Miss leby had worked

at the relevant times Now that was then translated by sub editors or whatever into what M might call hyperbole but that's what the police were saying my Lord yes they were is Paul Hughes in particular who'd been a senior officer in investigation um dealt with this and the figure of 4,000 was given on the basis that was the extent of the review because of other babies um that the defendant had come into contact with and in fact he did saying this is At item six um that this doesn't mean we're investigating all 4,000 it just

means we're committed to a thorough review of every admission from a medical perspective to ensure that nothing is missed throughout the entirety of her employment as a nurse and so it's quite right that and we don't suggest they were saying there were 4,000 other offenses to be proceeded with but but what was put into The public domain at a time when the prosecution were actively considering retrial was the possibility of further offenses and an investigation into the same which would be we respectfully submit quite extraordinary from a standing start in criminal litigation if a trial

was about to take place and an utterance like that was made I'm sorry I interrupted not at all um the fifth area there were six so we're nearly there with the summary but the Fifth area was comment by public figures no control over that of course but it is a feature of this case that it attracted comment from the Prime Minister and and others in public office we deal with that at item 23 of the schedule it has to be said mostly that was due to the applicant not coming into court for sentence but nevertheless

it was against a background of intense hostility towards her and then finally comment by various Witnesses but perhaps most notably Dr Ravi Jam who was a lead witness in the trial that was to take place um he generated a good deal of material we set that out it's in a particular part of the the bundle at items in the composite bundle items tabs 13 14 and 15 and and I don't go there now because the court is well able to do so but tab 15 in particular sets out the volume of material generated by that

witness that Was almost entirely self- serving giving the trial that was about to take place in itself that is prejudicial but we do complain and did complain of the fact there appears to have been absolutely no effort to restrain that witness from from engaging in a almost Perpetual narrative that had the effect of bolstering his position and the account that he would go on to give at trial I'm grateful for the opportunity to summarize that material there's a lot Of it and I've endeavored to do so but I shall move to the submissions that we

make then as to the two grounds yes thank you my Lord um I'll deal first of all with why we respectfully submit that the first category of abuse of process is engaged in this case that being using the Maxwell characterization that the applicant could not receive a fair trial and we asked the court to consider This in the light of the totality of the media material identified which are examples of what took place and and we we submit it was exceptional it was deeply prejudicial and will be bound to have had a lasting impact on

members of the public including those who became jurors in due course a principal response to this by the respondent um in the Crown Court and in the response for this court was as to The accuracy of the material underlying the comment and I don't seek to Pres my learned friends Arguments for them but the argument really was well this is principally comment upon material that is accurate and there can be no complaint about accurate reporting I apologize if I don't do full Justice to the argument well he can make his own argument in due course

he will do I'm identify it our submission was And Remains the accuracy of the material is not the issue and the accuracy of the underlying material the convictions and the facts is not an issue and nor do we or have we made criticism of the reporting of that in so far as it simply reported what took place there is no criticism of the reporting but accompanied with that is a comment and presentation that reflects shock and outrage and condemnation which may be Unsurprising but that's how it was the Prejudice occasioned by that is is quite

distinct from questions of accuracy and accuracy is no answer to this complaint and the reporting of the convictions is not the issue and indeed the defense at trial recognized that it is inevitable and was inevitable that those convictions would form part of the evidence that the jury would hear in any event how could they Not we recognize that um and and therefore they could hardly be missed by anybody certainly wouldn't in the course of the trial but it is the accompanying hostile comment that we submit my Lord is the huge problem from as we've shown

public figures from the very top and throughout all levels and the fact this is a submission that we rely upon the fact that the Prejudice attaches inevitably to the convictions makes it far more Difficult to control or alleviate it because as soon as those convictions are referred to we submit it's inevitable that all the comment and everything that's accompanied them in the public domain then comes to the front of any recollection of them I I'll respectfully give an example of why we say Prejudice if there is Prejudice is not justified or remediated by accuracy and

I do it in this way and I Appreciate this is hypothetical but if the order of the trials have been reversed if trial one and account one count of attempted murder were to be followed by a trial of 22 other offenses I respectfully submit that an order under section 42 of the contempt of court act would be unremarkable not because of any concerns about the accuracy of the reporting of what was going to be in that one trial but because it's recognized the Potential impact of that upon the fairness of a following trial could interfere

with the administration of justice and by extenstion respectfully submit my Lord that if there was a 22c count indictment for trial to be Follow by one count the argument would apply in fact with just as much force if not more so because of the massive amount of prejudice upon the one count that would follow now of course we Recognize knowledge of what was going to happen was not available to everybody but it's a significant feature of the application we make that these things were said at a time when retrial was under consideration um and for

that reason and with that example we submit that it can be no answer to Prejudice to say well the reporting is accurate or based upon accurate material or fact or convictions and for the same reason we Respectfully submit that the heinous nature of the crimes themselves is no answer to the application we note the content of the Learned judges sentencing comments at paragraph seven of the respondent notice and they featured in the respondent's reply to our submission at trial and we recognize the recital of those sentencing comments from the first trial is a dramatic reminder

of what those crimes were and how the Learned Judge viewed them but we respectfully submit that cannot be relied upon by the respondant to justify unfairness because however the Learned judge expressed that and one can understand how and why he did in the context of the convictions repeated and unrestrained saturation coverage goes well beyond those comments and it does not cast light on how to deal with this and my Lord in seeking to persuade the court to consider this application respondent in seeking to persuade the court to do this in terms of the convictions and

the fact that what followed is simply a function of the convictions rather than comment and that start with in paragraphs 35 and 47 of the respondents argument in seeking to do that to draw that distinction we respectfully submit that the respondent advances in effect a False dichotomy between those two things between conviction on the one hand and comment on the other and I make it plain we mean no discourtesy by the use of the word false I use that in a philosophical rather than an ethical context it's not a proper distinction between the two because

there can be no distinction between conviction and comment in the way it was dealt within the media in this case as if one can be hived off from the Other the the comment is inextricably bound to the convictions and that is the point my Lord and that is why it's so difficult to diminish the Prejudice because necessarily the convictions coming into the trial play a part in importing all the comment back into the trial that are inextricably bound with them in the public domain our submission therefore considering that is that if the Prejudice created by

media coverage is so great there cannot Be a fair trial then the abuse is established and we respectfully submit that is the position given the intense hostility and the saturation now we recognize that the remedy invariably when the court is presented with a situation like this is the trial process itself um that is the principal approach taken by the Prosecution that plays an important part in the Learned judge's ruling and we recognize that and we respect that argument we understand why that is the case and Reliance is placed upon the authority of Montgomery which goes

into some detail as to how that applies again I shall deal with this as succinctly as I can but mcgomery features quite heavily and may feature in the response and therefore perhaps I could deal with this my Lord Montgomery is included in the composite bundle from page 65 of that bundle which is cacd one before item 12 it said that the facts of Montgomery or Montgomery itself is similar to the instant matter and saying that the respondent therefore advances that the solution to prejudice is the same we respectfully submit it it really is very different

Both in terms of fact and in terms of where the jurist Prudence takes us in Montgomery there were three potential defendants for allegation of murder only one was proceeded against initially um he was tried for murder but was convicted of assault and acquitted of murder and there was then much public comment as to whether or not the other two defendants should be tried for murder that first trial having taken Place much of that was directed at a disagreement that developed between the trial judge and the Lord Advocate but in any event defendants two and three

came to be put on trial and the issue arose of what is the status or the remedy to the publicity affecting that trial after we followed the first trial So to that extent we recognize why the prosecution go to why the respondent goes to Montgomery the first part of the analysis deals with consideration of how To approach Devolution issues don't propose to go there the second part part B as it's put from page 83 in the composite bundle deals with the question of pre trial publicity and in considering the position in this case my Lord

I shall deal with the key points arising from that although we'll Endeavor to assist if anything else arises the references I use a pagination in the composite bundle Lord hope who dealt with this the key the leading ruling the key ruling page 85 of the composite bundle just above the italicize words the test this is said that as this passage indicates it's the effect of the publication in this case the series of Publications on the mind of the notional juror at the time of the trial that has to be considered and the risk assessment exercise

requires account to be taken of The factors in including the measures available to the trial judge that may be expected to reduce the residual impact at page 87 it's about halfway down page 87 unfortunately the paragraphs aren't numbered but page 87 of the composite bundle it's identified having reviewed the way in which this is dealt with and concerns about publicity that the passages indicate halfway down the page that the Decisive question is whether the doubts which the defendants have raised about the impartiality of the tribunal or in this case we would say any unfairness arising

from the minds of the jury can be held to be objectively justified and that in a case which is to be tried under the suem procedure the tribunal includes not only the jury but also the trial judge thus the question is not confined to residual effect of the publicity on the minds of each of the Jurors account must also be taken of the part which the judge will play in order to ensure so far as possible the defendants will receive a fair trial I make it plain we're not endeavoring to perceive what lies within the

mind of the trial judge and make no complaint of that but it's the direction of travel which is that the trial process holds the answer to this that we identify from this and that is quite evident when one comes to page 90 where Lord hope Encapsulates we respectfully submit where where he gets to in the analysis it's at the top of page 90 a couple of lines in where he says the principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge

on the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence the actions of seeing And hearing the witnesses may be expected to have a far greater impact on their minds than such residual Recollections as may exist about about reports about the case in the media this impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds in particular when he delivers his charge before they

retire to consider their Verdict and the approach my Lord is that it's the combination of the trial process in which the jury are disabused of the prejudices which have been created by what they heard pre-trial combined with judicial direction that is the route to avoid unfairness and to make sure the trial is fair but of course the remedy in Montgomery is applicable in that case because a trial was due to take place not withstanding there been a trial of D1 there was to be a trial of D2 and D3 and no trial had taken place

concerning them so the issues could be determined freshly here that does not apply the material to which the Prejudice attached exclusively comes out of trial one and has been determined at the conclusion of a trial process there was no way in which the jury in trial two were going to have the publicity and the comment and the hostility Ameliorated by seeing what the actual evidence was that lay behind that and that's a crucial part of montgomary and indeed we respectfully submit that part of the the twin Dynamic Direction plus the trial progr process is a

crucial part of the way in which the courts seek to meet the question of prejudice where there has been a blaze of adverse publicity and this this is a very was a long blaze it lasted about five or six weeks come to the question of fade Factor shortly but we submit that the unfair Prejudice could not be remedied by consideration of evidence and the trial process because it came out of that and we observe in passing cases such as Abu Hamza 20071 criminal appeal reports 27 also when it looks at other authorities and other cases

of note in this area comes to the conclusion that it is the the trial process which is the necessary corrective and that does not Apply here we respectfully submit so the trial process cannot assist accuracy of the content of media reports we respectfully submit is no answer to this there were measures taken by the Learned judge there the pre-trial questionnaire to which additional questions were put to see if the jury could identify anything which would interfere with their ability to deal with the trial Properly um I of course cannot be the final Arbiter on the

cognitive processes of the jury or or all we can say on behalf of the applicant is that when there is this volume and extent of vitriolic publicity the extent to which bias may exist may go well beyond the ability of the individual to identify it and that is why it's necessary for the court sometimes to step in and take the decision as to where fairness lies we Say questionnaire could not meet this nor we respectfully submit for the same reasons could judicial Direction on its own the evidence I apologize that publicity was overwhelming and almost

nobody could have been immune to it and it's diffult to see how any direction could could meet that this court will form its own conclusion my Lord I know that it is an exceptional case with an exceptional volume and intensity of coverage we do not respectfully accept That the fade Factor can in any way deal with this case it ignores the reality of the situation the trial had lasted for 10 months it was widely anticipated it was reported extensively and in minute detail and it was Then followed by weeks of this coverage across every area

the level of reporting ceased when a retrial was fixed but the prejudicial material remained in the public domain For any and all to see and that retrial was widely anticipated and we say respectfully it is unrealistic to regard anything about this case as fading at any point those headlines with the evil and the rest of it that goes with it creates a lasting impression we understand the matter identified by the prosecution by the respondent I apologize at paragraph four which is The the the potential difficulty that if the worst cases create the worst publicity and

how is one ever to deal with the most notorious cases when they come to trial and that is a problem with which the courts repeatedly have to Grapple context as the respondent regularly says is is important our submission is not the submission seeking immunity for further prosecutions so it doesn't establish That but the starting point has to be however difficult it may be and this is drawing to a conclusion with ground one of our application that the principle of fair trial has to and does apply to everybody whoever they are and however heus the background

to the case it's the same whatever the background save that we observe it may be very much more difficult to achieve in the context of heus previous Convictions now the respondent is correct the consequence would be that anyone can say pretty much whatever they want and if the crimes are bad enough too bad I don't say that disrespectfully I reduce it to a to a a very simple formula and if I'm wrong about that I will be corrected but we submit that's the problem with the way that is put we understand the attraction of that

in uninformed quarters This is such a case where the publicity was appalling because it came out of convictions that were shocking but the fundamental question on ground one is fairness whoever the defendant is and whatever they have done previously and however we get to the situation that we did at the beginning of trial 2 we respectfully submit that this could not be a fair trial in terms of confidence in the jury free to act OB objectively and Impartially and unencumbered by Prejudice arising from saturation coverage of a deeply hostile character from every angle and we

submit respectfully that the requirements of ground one are satisfied in that context that's the application we make my Lord with regard to the first limit of abuse I'll turn to the second um just so that the submissions can be In context with the law as the court well knows it to be just as a starting point just recite what the test is if I may and then I can develop the arguments we present set out at paragraphs 64 through to 66 of the perfected grounds but the the second category where abuse may arise is where

there is material or events that offend the Court's sense of justice and propriety that it should be asked to try the accused in the particular Circumstances of the case again I recite rely upon the formula Advanced by Lord Dyson in the case of crown and Maxwell and in that same case at paragraph 13 which is in the composite bundle at page5 Lord Dyson drawing upon other authorities describe further what that second category of abuse would be gave examples and said that a stay would be granted where the court concludes or identified that it would be

granted Where the court concludes that in all the circumstances a trial will a offend the Court's sense of justice and propriety that comes out of crown and horse free Road magistrates Court ex party Bennett or B where in the circumstances it would undermine public confidence in the criminal justice system and bring it into disrepute for the trial to follow and we recognize at the outset This has um this is not geared to unfairness to the defendant in the sense that the first limits this is a different species of abuse altogether and it is the court

protecting its own process against any type of abuse or unfairness the material we rely upon in advancing this ground focuses upon that which comes from to a limited extent the crown prosecution Service uh and it is one person in Particular we've identified where that is in the media we seek not to overstate the position it is what it is and it's limited to that from the crown prosecution service but also quite a lot of comment by officers and importantly officers associated with the case and the ongoing investigation at a time when they knew retrial was

under consideration and this is the material you've already refer yes yeah yeah I'm Not going to return to it just so just so we're clear yes I've dealt with it I hasten to add I've dealt with it in relatively short form yes well we've got the full schedule yeah but it is it is we'd respectfully submit unprecedented for comment like that to be made in advance of a trial so personal so critical of the defendant so subjective and identifying further lines of inquiry on quite a large scale and it Undoubtedly does my Lord we we

we recognize the figure of 4,000 is not the number of cases but there is no doubt when one goes through that material they are identifying there may be more out there and this is what we're looking at and that's powerful stuff and put into the public domain um the the test under the second limb has been refined over time and two authorities in particular occupied the Court's consideration at trial those were the authorities of the crown and Norman 2016 ewca criminal 1564 and that starts in the composite bundle of page 1 192 and the of

in and I hope I pronounced that correctly and I apologize if I don't and that's at page 178 of the composite bundle and the citation is 2024 England Wales cord appeal Crim 493 and in both of those cases in effect a two-stage test was identified when Questions of unfairness arise under the second limb as described in Max as well a two-stage approach first there is the requirement to identify misconduct what the misconduct is I summarize but for the assistance of the Court my Lord in Norman this is dealt with in paragraph 23 which is in

the composite bundle at page 198 and in in it's at paragraphs 23 to 25 composite bundle page 183 we Respectfully recognize that comes from the lady chief justice this year and so it could be said to be one of the most upto-date guidelines on the way this should be approached so I approach with appropriate circumspection in what I say but the two-stage approach is defined first the requirement to identify misconduct and then if or where it's identified there must be an evaluation of the facts and Circumstances weighing into the balance the public interest in ensuring

those charged with crimes should be tried against competing public interest in maintaining confidence in the criminal justice system those words from the lady Chief Justice in in at paragraph 24 now our our response to this is twofold and in the submissions before the court uh some some mileage was made of the fact that in our initial Submissions to the trial judge we made it plain we weren't alleging a bad faith specifically uh nor were we were putting this in terms of misconduct uh we identified what the material was as we have done to this court

and that is what we complained about and on the second day we went into the following morning I was provided with a copy of in by the trial judge which set out the position very plainly From that Authority um and we then took the position well however it's described we say this is wrong if it has to be called misconduct we say it's misconduct but it's wrong what took place so let me deal with that first of all because there the respondent identifies it naturally in paragraphs 45 and 49 and we say this first of

the two points in answer to Norman and ing if it Was a mistake for us or let me say that for me to use temperate language in my submissions to the court I recognize that and so be it um we pres presented the position temperately at all times we made complaint of that but if it wasn't presented in uh lurid enough terms that's where that takes us but it is the nature of the conduct that matters we respectfully submit not the label it's the nature if the police and the prosecution Launch into blistering attacks on

the defendant and who may yet face trial for matters they continue to deal with that is wrong whatever word is used for it it is wrong if they describe further inquiries they intend to make into thousands of cases and they do that when they know that retrial is under consideration because they asked for that to be considered that is wrong whatever label is applied to it and if they don't even attempt to keep in check The self-serving public commentary of the prosecution lead witness in the case that is wrong so we respectfully submit when coming

to consider the second limb of abuse that a defends the Court's sense of justice and propriety to try the accused in the particular circumstances of the case we respectfully submit that conduct such as that that we identify should offend the Court's sense of justice and propriety whatever label We attach to it the second reason that we identified this material for the court is that Norman and in have elaborated upon the law as it was stated in Maxwell drawing upon ex party Bennett and Latif in setting out what the second Ling of abuse was I've dealt

with the formulation in Norman and in in particular with a view to Misconduct now in fact if one goes to Maxwell where this begins that doesn't set out requirements specifically for bad faith or misconduct or any particular formulation of what constitute an offense to the Court's sense of justice and propriety and my Lord I go to page5 of the composite bundle which is from Maxwell and paragraph 14 uh in which particular passage from Latif coming from Lord Lord stain was set out and upon which the court in Maxwell relied and if the court would look

into that passage we see pretty much in the middle of the text that it said that an infinite variety of cases could arise this is dealing with the second limb General guidance as to how the discretion should be exercised in particular circumstances will not be Useful so recognize the weight of of the court in Norman and in in I proceed with caution but it is we respectfully submit significant that the root of the second limb of abuse is much more broad than simply a formulation of misconduct although that may come to it and it should

not be respectfully submitt be limited to that and indeed the case of Warren and attorney general for Jersey one appeal cases 2012 at page 22 paragraphs 23 and 25 of that Authority Which are up page 216 of the composite bundle at paragraph 25 in particular says the board considers it is a useful summary of some of the factors that are frequently taken into account by the courts when carrying out the balancing exercise referred to by Lord stain in R and Latif but it is also necessary to keep in mind his salutary words that an infinite

variety of cases can arise and how the discretion should be exercised will depend on the Particular circumstances of the case so whilst the narrowing of focus upon what is described as misconduct in Norman and then in in is powerful assistance in interpreting how to apply the second limb of abuse we respectfully submit that to bind that to terms like bad faith or conduct as if they are mandatory requirements cannot follow from where The roots of the second limb of abuse lie and that would be uh an unjustified constraint in considering what is capable of amounting

to that and the proper way of approaching it uh is is to regard these as powerful examples but not prescriptive requirements and approach in that way the conduct of the prosecution and the police in terms of their public statements is we submit capable of amounting to an abuse under The second limb to some extent but not entirely the two points we make in answer to this are are aspects of one another but there are subtle differences first of all that it doesn't matter what the label is that was our first point and secondly that in

any event the categories of abuse here are not closed or limited by any particular particular formulation we're grateful to deal with that in some detail because it's a Significant part of the response it's important to identify why we rely upon that material and so my Lord that being so and and if we are right that it can at least come for consideration under the second LM if we get to that point then the real issue is whether on balance the public interest in proceeding with this trial outweighed the extent to which Justice and propriety were

affected Ard and as to that we recognize being Temperate and and realistic in our submissions that the balance is a fine one when Council recognizes the balance is a fine one that isn't necessarily a precursor for saying that the respondent must therefore be correct because that doesn't follow the balance can be fine and come down in favor of the applicant and we say that is the appropriate resolution of that in the this case where the police have embarked upon a media Campaign which undoubtedly This was we haven't gone to everything in the schedule but there

are websites in which they set out what they did and how they did it and publicizing all the work they'd done it was a campaign and embarked upon it in such emotively charged circumstances against a background of multiple convictions for the most grave offenses and importantly where they knew that a retrial was under consideration and was a possibility Then that is we say unfair and can properly offend the Court's sense of justice and propriety it really is not what should happen at all and in the subm circumstances of this case and giving him bearing in

mind all that had already happened the public interest could be met by finding there to be an abuse because in our submission and in conclusion with regard to this it is inimical to the interest of Justice that those responsible for investigating the matter and bringing it to trial should generate material that creates powerful prejudice against the defendant while simultaneously bolstering their own status we submit that is what happened and it can properly and should offend the Court's sense of justice and propriety for that reason recognizing the balance is a fine one nevertheless we submit that

the requirements of the Second limb of abuse are met for that reason we say that this material or elements of it meets that um my Lord my lady I'm grateful for the opportunity to set that out to the court if there are further matters to deal with now I shall Endeavor to do so otherwise I can respond if necessary when further submissions have been taken I shall see if my Lord has anything who wants to ask my lady no um I think you answered this Already at least implicitly the evidence of the previous convictions I.E

the trial convictions first trial convictions went before the jury and was that by agreement it was my Lord yes and you've explained why yes yes all right thank you very much indeed yes Mr Mr Johnson please you my Lord my lady um you have received U very long written submissions from both sides um If they were over long from our point of view I apologize but the advantage of course if there is one um is that it probably reduces the amount of time that I need now to um develop um the arguments yes um the

publicity um has been characterized this morning um as unadulterated an adulterated vitriol uh we don't for a minute accept That as anything like um a reasonable or accurate characterization um what was said um by the police in the aftermath of these of the convictions in the first trial uh was reasonable um it accurately and moderately described the horrendous offenses um of which this applicant had been convicted and just taking up on a point That my Lord has just clarified with milone friend um those offenses were admissible evidence in the retrial and and that really in

a in a single paragraph um summarizes the conundrum or the difficulty we submit um for this application um in making the submission to the Learned trial judge and it's in it for Renewal today uh the applicant uh relies on 62 elements of or particulars of publicity and it it merits we would submit just looking at um when those articles were published or those television programs were uh broadcast um on Friday Friday the 18th of August which was the day of the conviction uh there were 16 items from the schedule number one and numbers 3 to

17 um o of those items numbers 13 through 13 4 5 7 8 9 10 16 and 17 we're on the television there was a good deal of overlap um between um that material and the Panorama program was um item number 16 um one of the items um focused on the hospital management so how for example that could possibly fall within the characterization given this Morning um we respectfully query following day the 19th of August there were 10 items there items 18 uh to 27 items 22 and 27 were use items which focused on the

hospital management this is not unadulterated vitriol aimed at the defendant uh the other eight items were all written news most of which focused on the hospital management the exceptions to that were Item 18 which is where it was reported that the police were continuing their investigations I pause there for a second to uh respectfully observe in the context of these convictions a statement of anything different would have been astonishing um item 19 which recycled material from the previous day item 21 which focused on Lucy Le's grievance against the hospital for being Suspended from the neonatal

unit and her treatment by the management of the hospital as a victim and item 25 which described how Lucy letby gave evidence in her defense that certainly wasn't vitriol and item 26 which um reported uh the interviewing officer's assessment of uh the applicant's lack of emotion when she was interviewed and gave evidence in her own defense so so far um that's 26 of the 62 Items in the within 48 Hours of the conviction months and months before the retra Sunday the 20th of August four items one can already detect The Familiar pattern of the new

cycle we've gone from 60 on the day to 10 the following day to 4 on the Sunday nothing on the television um a 15c tick tock Sky news clip of detective superintendent Hughes recounting the emotional impact of the Investigation that's not uh an adulter an adulterated vitriol aimed at the defendant um the three other items concern the continuing inquiries and the fact that the different babies cases that had featured in the trial had been investigated by different teams of detectives in order to avoid group think that's got nothing to do with the defendant Monday the

21st of August the day that sentence was Imposed predictably uh the new news cycle uh got a second wind uh 10 items items 32 33 35 36 to 38 48 54 55 and 58 seven of those were television programs or Transmissions they concerned principally the senten hearing Lucy ley's non-attendance the desired format of a public Inquiry the culpability of the management at the hospital and the suggestion that the managers should be regulated in the same way as the nursing staff and the medical clinicians items 3 6 and 38 are almost identical none of that material

was directed at Lucy leby even less does any of that material justify the description of being vitriolic the three newspaper articles were items 33 48 and 54 they address the contrast between what had been proved by the convictions and the continuing support that Lucy let be enjoyed from her friends that was not vitriolic there was an Arcane medical post on LinkedIn and there was the heral Wales report of a selection of the television material that had already been transmitted Tuesday the 22nd of August the new cycle was losing momentum four items items two 39 40

and 44 the two two television items were 39 and 40 item 39 was an explanation of Dr Sandy B role as a witness with a call for a full public inquiry not vitriolic not aimed at the applicant item 40 uh was a chat show which concentrated on the issue of whether there should be CCTV in neonatal units and at the end something my learni friend has just referred to a very short consideration of whether or not people are quote born evil close quote the other two items were a podcast in which uh superintendent Hughes explained

the police approach to the investigation again not focused on the applicant and finally a newspaper article that focused on the Management's Shortcomings again only tangent referring to the applicant Wednesday the 23rd of August so we're now five days on from the verdict five items 41 43 45 47 and 52 two of those were television or YouTube um broadcast the items 41 and 43 41 was a discussion with a couple Whose child had been in the neonatal unit but was not part of the case and 43 was a series of stills from inside Lucy ley's house

with a commentary that attracted comments from viewers which have been reproduced in the applicants bundle which principally is our Direct Ed at the shortcomings of the hospital management the three um Twitter stroke X or newspaper items all focused on the shortcomings of the hospital management So again to suggest that this body of material was unad unadulterated and vitriolic and directed at the applicant is to misrepresent the reality of what we're dealing with Thursday the 24th of August uh two items both in newspapers items 42 and 46 42 included quotations from the inquiry team concerning what

was on their minds During the investigation and item 46 was a speculative article concerning um the consideration of a potential link between asterisks in Lucy ley's diary and offenses she had committed neither of those justify the epithet that's been uh given this morning 7 Days on from verdict the 25th of August two newspaper Articles numbers 49 and 50 both from the mirror um the first concerning parents whose child had been in the unit and their contact with Lucy letby and the second was entitled quote inside Lucy's beige home while I pause rhetorically to ask uh

what is the greater insult being referred to as a serial killer of babies something which had been proved or being called beige beige certainly doesn't qualify as Vitriolic Saturday the 26th of August a single article published by the BBC item 63 reporting that the times had reported that ITN would be making a documentary how on Earth could that possibly be worthy of the epithet the Monday the 28th of August one article in the Manchester Evening News item 51 focusing on Dr boen um the news cycle had almost lost Interest lost interest uh Thursday the 31st

of August a single article number 53 in the times calling for more medically qualified members of Hospital boards we then move on almost three weeks two and a half weeks to the 17th of September one article in the Daily Telegraph it's item 34 recycling material from The Daily Mail podcast so the telegraph copying the homework of the Daily Mail the 23rd of September item 56 ITV News footage of an interview with a nurse Abby lever who worked on the neonatal unit it is not anti Lucy Ley the 4th of October talk TV interview item 59

with Dr Evans which focuses on the culpability of the hospital management exactly the same subject as items as item 36 on the 21st of August Sometime Late in 2023 and it's not easy to be sure of the precise date item 57 an article from LinkedIn Express nursing focusing on the disparity between the tight regulation of Medics and nurses and the non-regulation of Hospital managers we then come to the three items in 2024 the first is item 60 which is a Twitter or X post from the bmj leader Aimed at hospital managers the 22nd of March

item 61 Dr Jam featured in a sky news program to the saying to the effect that clinical staff were being intimidated by Hospital managers and then finally um the 14th of May 2024 item 62 uh the much discussed New Yorker article which is very very Pro Lucy leby uh suggesting that she had been Wrongly convicted this was circulating on X or Twitter um in the weeks before the retrial um it was given significant traction under the P under the protection of parliamentary privilege by S David Davis and if ever this court wants evidence that publicity

had no effect on this jury this is it because this was very Pro let be Anti- prosecution material circulating with significant traction on the internet in the weeks and days before the trial which was very much to the advantage of the applicant and so my Lord my lords and my lady in that context uh one remembers the old epithet that um today's front page is tomorrow's fish and chip rappers and that's a a more homely way of Articulating the point or the concept with which this court um is well familiar uh which in legal circles

is usually called the fade Factor just taking a step back then uh we have a situation in which there was a lot of publicity in the week or so after the convictions that's not surprising um but was whether or not it's surprising was it prejudicial um and the answer we respectfully submit is Absolutely it was not um it has been uh completely mischaracterized by the applicant in order to provide the factual foundation for the application that she now makes most of the material uh would wasn't vitriolic but in so far as it was disapproving most

of it actually was directed at the hospital Management and um the um overwhelming uh support in the news media for the institution of a statutory public inquiry that's the truth of it um so uh with that in mind um my my Lord can I can I just deal uh I hope briefly um with the two species of abuse a species one um were the defense able to establish on the balance of probabilities that this defendant couldn't have a fair Trial because the publicity would unfairly Prejudice the jury well what is the context the context as

my Lord has already clarified uh was that uh the woman in the dock was as was known to the jury if not when they came in within a very short time of the being sworn um a multiple child murder and so it follows we submit that the court the trial court had to take into Um account in in assessing the um sustainability of the application that the jury was entitled if they saw fit to take into account that over a 12-month period this appellant had murdered seven children and had tried to murder six others one

of them on two separate occasions and we we submit that the this application um seeks either to distract From that fact or to relegate it to the periphery and the consequence of that attempt at distraction we submit um is to promote the notion that publicity in itself um is objectionable and and we submit that that erroneously synonymized publicity and Prejudice and a good example of that um is the Reliance on the New Yorker Article so just look at the fact that it was publicity rather than looking behind that to see what was actually being said

another part of the context uh was that in the retrial Lucy leby could have called medical evidence in the retrial to establish that she was not guilty of the 14 offenses of which she had been convicted by the time the retrial started nine months had passed since the convictions and yet she chose not to Call that evidence she could have called it she chose not to and so it follows that the Learned judge we submit was ruling on an application to stay knowing that this applicant wasn't even raising um an evidential issue backed up with

evidence um concerning her convictions well I I assume he knew that when she was to give evidence she was to say I did not commit any of these crimes absolutely but your point is that's the Only evidence she relied on to discharge the burden that was on her to demonstrate she was not guilty precisely my Lord and and in this context given that the burden passes on the balance of probabilities to a defendant to disprove the convictions any sensible dispute about the convictions necessarily we would sub admit would have had to have involved calling medical

evidence and so put putting it putting It another way drawing all that uh material together um given the um the evidential Matrix uh which was being presented um to the court of trial um did the 62 publicity items either make a fair trial impossible or species 2 provide evidence to establish that the prosecution had acted in such a way as uh to borrow the words of the lady Chief Justice in paragraph 22 Of it offends the Court's sense of justice and propriety or public confidence in the criminal justice system would be undermined for the defendant

to be tried in the particular circumstance ances of the case such an abuse must amount to an affront to the public conscience as I've already said this application we submit confuses conveniently for the applicant but it Confuses uh publicity or accurate reporting with prejudice and it seems given what's actually in most of these articles um it seems to us at least uh that the what's really being suggested here is that the simple fact of publicity means that this applicant applicant couldn't have a fair trial we remarked at the time in the context of the arguments

before Mr Justice Goss and we continue to remark In the respondence notice um that the material in support of the application hasn't been objectively analyzed by the applicant in order to give um credibility um to the arguments that are being um put forward it's just summarized in that uh way it was this morning as being vitriolic that's not as I've already said I'm repeating myself Stu now but that is not an accurate Characterization at all nowhere in uh the material submitted in advance or indeed in the submissions made this morning um is there any reasoned

analysis of how that material exposes or exposed the applicant to a level of lasting Priam that extends Beyond any revulsion inevitably linked to the the facts of her convictions which were as has already been established admissible evidence before the jury and so my Lord if the applicant's Argument is correct um in the absence of any such convincing analysis of how the publicity has genuinely had a prejudicial effect in isolation from the fact of the convictions it would follow that in any case in which there's been a lot of reporting and the offenses being reported upon

are extreme that publicity must be prejudicial and that simply is not Correct the law does not support that approach and the consequence we submit of the applicants confusion is it that it promotes the idea that the more extreme and notorious the offending the less likely it is that a trial or retrial can take place and that is plainly contrary to the ends of justice and that is pretty much set out at paragraphs 106 to 108 of the applicants submissions um we submit that given the extreme Nature of the offending um any comment that would be

sufficient to support a species one submission of an abusive process would have to be very extreme not to be susceptible to the fade Factor um all the modern reported cases um concern public concerning publicity um sorry all Mis phrase that all the modern reported Cases um concern publicly public suggestions of the guilt of the offender which comes into the sphere of potential jurors prior to the trial the convoluted sentence so put it putting it another way every time this court has been asked to rule on this type of application um it has been where U

before an applicant has been tried there has been what has been submitted to be prejudicial material in the public sphere um There isn't that in this case um because all the publicity concerned offenses of which the applicant had been convicted and that was admissible evidence um and so in an effort to get beyond that fundamental problem um the applicant has submitted that comments made in the Press by either the police um or a representative of the CPS were quote highly prejudicial and emotive um but but there's no analysis Of what's actually said and these comments

we submit simply do not begin to justify um that description can I Mr Johnson as you point out um what was said by Crown prosecution Service employee and various police officers followed convictions yes and in some cases the sentence which came a few days later um And it's the experience of those of us who practi in the criminal justice system that Rose 20 30 years ago somebody would be convicted of serious crime and police officer might or might not say something about how helpful the witnesses have been but you'd get very little comment about the

nature of the defendant or the crimes whereas now it appears to be almost required for police officers To appear on the television and so forth yes um and so Mr Hughes how would you describe the crimes of Lucy let be horrible horrific and evil that's the sort of language that she's complained about and that's something that police officers perfectly entitled to say in the in the aftermath of a conviction I think the complaint is that the police knew because the issue had been left over at the conclusion of the trial the Police knew that there

was a possibility that there might be a retrial of one or more of the uh counts on the indictment where the jury had failed to agree yes and and therefore to engage in what in all other circumstances would be normal and unexceptional comment that is what creates the Prejudice now how do you respond to that that's as I understand Mr me's core Point absolutely well um that probably crosses both species Potentially so so dealing with with species one first um first of all um the comment is uh a measured comment to describe what has been

proved and what was admissible in the retr um and so um the idea that it in some way um prejudiced the applicant in the retrial we would submit um doesn't uh bear much analysis um and secondly um whether or not I'm right About um the first point the idea uh that a a jurer in uh June 2024 would remember um a couple of lines of adjectives um or a description given by police officer on television or on a podcast or in the printed media um the idea that a jury would remember that uh nine months

later uh simply uh doesn't bear uh any sensible analysis and and if I can give Um my Lord an a more specific example of what I'm talking about we all um have read um and considered this material in detail in in a quiet room in anticipation of the fact that these issues are going to be raised in this court and I I I can only uh speak for myself but I I venture to suggest uh that uh those of us who anticipate that we may need to refer to any of this material either from the

Court's P perspective in a judgment or From council's perspective in submissions will have made a very careful list of specific words that appear in specific items uh the idea that that material is carried around in our heads um is unrealistic um the idea and and now really borrowing from I think it's uh the the words of uh the law Justice General Lord emsley in Montgomery who is Is quoted I think in Montgomery U making precisely this point that it's all very well to to complain about uh or or to suggest that uh Prejudice arises from

publicity but one needs to take a step back and be be realistic about it um most of this material washes over uh most people even those who don't who it doesn't wash over don't remember specifics and here we have a situation dealing with species One where um it's for the applicant to establish her case and the reality of the position we respectfully submit um is that no juror would have remembered this material even less in the context of what had been said by the Learned trial judge who uh ex expressed the position in uh arguably

more forthright and detailed terms indeed the very trial judge who uh retried this applicant it Wasn't suggested and never could it been suggested uh that Mr Justice gos wasn't an appropriate trial judge for this case um the idea therefore that um some really throwaway lines which pale into insignificance in the context of a comparison to the facts of the offenses which were admissible evidence could create Prejudice or Injustice is we submit not a realistic submission so that um I'll come to to to species um two in a second if I may I haven't Forgotten that

con that part of the the um the issue that your lordship has invited me to address so um yeah I think really probably unless there other specific issues that the court would like me to deal with so far as species one is concerned that's probably as far as I can take it bearing in mind that the court has already read and no doubt digested the voluminous written submissions just check n no yes if you want to deal briefly With species two then species two um can be dealt with um very very um quickly um both

um in oral submissions this morning um and at paragraph 67 um of the grounds of appeal page 22 of the applicants Consolidated bundle in quoting Norman um the uh applicant recognizes that um there uh is a balancing exercise to uh be performed here and that each case is fact Specific um in the context of a remedy of Last Resort um and uh the clarification recently provided by a different constitution of this court in the case case of uh the uh concession made in argument before Mr Justice gos uh we submit is fatal but even if

that wasn't right and by that I'm referring to the fact that um the on behalf of the applicant it was Conceded that there was no uh misconduct on behalf of either the prosecution or police um but also um this morning and indeed um also in the written application at paragraph 119 um the uh decision for the trial judge is uh characterized as um being a a fine balance um now in in dealing with that issue this Morning uh my learned friend has submitted uh to the court that even though it's it was a fine balance

um the Learned trial judge came down on the wrong side of the balance um but but but that doesn't with with the greatest of respect um deal with the problem from the applicant's point of view um and in this respect I remind the court of um the words of uh the Supreme Court um in the case of Maxwell When the Supreme Court was dealing with the issue of whether or not a retrial should have been ordered um in the face of what was truly remarkable and egregious misconduct by West Yorkshire police and and one of

the points made by the Supreme Court um was that a differently constituted court of appeal might have um come down um against ordering a retr and indeed their their Lordships in The Supreme Court was split 32 um on the issue with one I can't now remember which of their Lordships it was but one of their Lordships apparently during the course of argument uh changed his mind having been persuaded by uh Lord Dyson um in order to succeed on species two uh we given that it is a an exercise of judgment by the Learned trial judge

we submit that the applicant would Have to persuade this court that um the Learned trial judge was demonstrably wrong and to make that submission in the context of a concession that it was a finely balanced judgment um that that the two points of view simply can't be um put put together or um if one accepts it's a finally balanced Decision One can't say it's clearly wrong to come down on one or Other side of the fence so for those reasons we we would respectfully submit that species 2 doesn't get get off the ground but whether

or not we're right about that there there is a third answer to the submission which is that um what is what was said and this is coming back to my Lord's question earlier but what was said by the police Andor the CPS representative at Court um pales into insignificance in the context of the facts that had been proved against the applicant in the trial in trial one which convictions were admissible in trial two and therefore no therefore known to the jury in any event and so my lord for for those three three uh reasons we

would respectfully submit that uh species 2 doesn't begin to get off the ground unless there any is any Clarification or further elucd thank you very much indeed Mr I'm being I'm being prompted from behind on a there is a very good point of which I'm I'm reminded and it's just going back to your la question and species one a point that I overlooked um which is um that's spoken of in many of the authorities about the corrective um process of the corrective effect of the trial process and of course um this court has seen that

um This jury was um asked questions and specifically when um the application to stay was fused um the jury was asked two supplemental questions um which appear um in the learn of friends um bundle um at tab 18 can you give me a page number um I can of course it is Page 350 yes unless that um further submission has Provoked um any questions from the court um I think that's all I can reasonably say me no thank you very much indeed yes Mr Mars I just four points I'd like to raise in response um

the first is the submission that in some way by using words like vitriolic or unadulterated that is to mischaracterize the material that we look at um and also that there has been no Objective analysis of that material which in some way undermines the point we make the court will form its own view of the nature of the the coverage what we have provided are examples um the summary provided by the respondent navigates its way through those examples without reference to evil devious cold blooded and the like which are throughout context is Important my Lord the

court have been provided with the summary but it's the underlying material that matters it isn't good enough to say for example with regard to item 51 that there's reference to inside let be's beige home and that's an end of the matter if one actually goes to the link one finds it opens with um the former NHS nurse bought the ordinary three-bedroom property in Chester gives the price and lived there whilst Carrying out her cold-blooded evil crimes and then goes on to say killer nurse Lucy Ley is set to die Behind Bars after being convicted of

murdering seven babies and trying to kill six meaning she'll never return to the place she called home and goes on to describe the house where she carried out her Campaign Of Terror and if one goes to the underlying material The inextricable Binding of what may appear to be anod facts with comment that is properly Characterized as vodic is there so but the assistance of the Court my Lord we're compelled to observe it is important not simply to look at the summary which necessarily is brief but as we understand the court will have done having the

material to have considered what underlies it and it is deeply hostile the New Yorker article which is the one item that stands out in isolation the significance of that is the reference it Makes to the behavior of the police and the program they wish to engage in publicizing their work on the case the court will form its view the criticism that there's been no objective analysis of this um we respectfully do not understand as in terms of what we are meant to analyze Beyond putting before this court the material that there is the words such

as evil devious coldblooded or manipulative coming not Just from the reports but also from officers speak for themselves and we do not regard any further analysis as necessary the question for the court and ultimately would be a subjective one is what unfairness follows from that there's no cognitive breakdown we can do Beyond looking at those words and a court as courts do assessing what the impact of them is that's the first point the second matter is This that in so far as the convictions being admissible is an answer to complaints of unfairness just add this

of course that's not accepted by the applicant but that would be no answer to species 2 in any event which is a different issue alog together with regard to species 2 the third point is this my the respondent was asked to identify what was said about the comments by the Police and the prosecution and the answer was that it was largely measured comments not Prejudice not prejudicial to the appendant in a retrial and the jury would be unlikely to remember it nine months later we we took the court in summary to comments from the police

and the prosecution we don't repeat it now they're not measured but the answer that it's unlikely a jurer would remember them nine months Later if that's correct in terms of the fade Factor may be capable of being an answer to species one but it is not an answer to species 2 which is the matter that your lordship was Raising that isn't the point that's the difference and as for the suggestion that the fade Factor would mean that material at the time would not be carried in a potential juror's head the point is that what will

remain are words like evil or misconduct or killer or 4,000 cases um it can't be said and there's no objective analysis to suggest they would not remain in a potential juror's mind the final point we raise in answer to matters dealt with in the submissions my Lord is the question of the term fine balance and whether that therefore shuts the applicant out from arguing that that fine balance was resolved in the wrong way we submit that our recognition that There is a fine balance in this situation is no bar to the ultimate decision being wrong

because in our respectful submission this isn't one of those cases where there is a broad discretion within which a judge may fall anywhere along a Continuum if it is unfair and if this court finds that that offends Justice and propriety then that is an end to the matter the fact the balance may be fine does not not justify it if the Learned Judge resolved the matters in a way with which this court properly disagrees and we would respectfully submit that fine as the balance was those comments and that behavior in the context of this case

does offend in the way identified by species to and there is no broad discretion to be applied which undermines our submission by our recognition realistically that these things may be difficult and there is a fine balance Grateful for the opportunity to deal with those my Lord I just be given one moment to confirm if there's anything further well my lords my lady unless I could of any further assistance those are the submissions we make thank you very much indeed um Mr Johnson we propose to give judgment today um there are orders preserving the anonymity of

self-evidently the the vi the victims of attempted murders Including the baby who was the common subject of this case um there is there any reason why this judgment and the outcome of this appeal application can't be reported in the normal way there's no reason at all my Lord no I mean the the previous um judgment was only released that is in relation to the original convictions after the retrial yes but that was the only reason it was delayed it was my Lord the Ju Ju Just I'm I'm sure that you my Lord knows it's anyway

but the the the cipher given to the child in this case is Baby K yes and this is absolutely no disrespect to the to that baby and to the parents um because of the nature of this case um we shall make only but passing reference to the crime of course yes um right well we shall rise to consider the position I hope that we'll be able to give judgment before lunch it obviously won't be for at least 15 Minutes but if you would make sure that you're available before lunch thank you uh the Judgment we're

about to deliver uh will be available in written form as soon as possible after the Judgment uh has been delivered um and it will be posted on the National Archive at some point later today so those who are seeking desperately to make a note can be uh can relax a little I shall say right at the start that We're going to refuse this application for leave to appeal so that the applicant knows the position as do all those others interested in the case uh Lucy letby was a qualified nurse she worked at the neonatal unit

in the Countess of Chester Hospital in August 2023 she was convicted in the Crown Court at Manchester after a trial lasting over 10 months of seven counts of murder and seven counts of attempted murder her Victims were very young babies being cared for at the unit on 21 August 2023 life imprisonment was imposed on each count and a whole life order was made in each case the jury were unable to agree in relation to six other counts have attempted murder they acquitted let be of two counts of attempted murder these counts also involve very young

babies in her care in relation to the counts on which The jury were unable to reach verdicts the prosecution took time to consider whether to seek a retrial on 25 September 20023 the prosecution announced at a hearing in Manchester that they propos osed to retry letby on one count of attempted murder the trial was fixed for 10 June 2024 the trial judge Mr Justice Goss imposed a reporting restriction pursuant section 42 of the contempt of court act 1981 whereby there was to be no reporting of any matter which would create a substantial risk of prejudice

in relation to the trial due to commence on 10 June the background of the case to Lucy to the case of Lucy letby is very well known it was set out in detail in a judgment of this court handed down on 2 July 2024 in relation to her unsuccessful application for leave to appeal against The convictions in August 2023 neutral citation 2024 ewca Crim 748 her case attracted very substantial publicity as the trial progressed after she was convicted there was a great deal of broadcast and other media comment about the horrific nature of her offending

doubtless this was the trigger for the reporting restriction imposed on 25 September on the first day of her retrial uh on 10 June 2024 Council for letbe who had represented her at the first trial applied to the trial judge for a stay of the indictment charging a single count of attempted murder it was submitted that a trial on that indictment would be an abusive process it was argued both that letby could not receive a fair trial and that it would not be fair for her to be tried the argument was based on the nature and

extent of the publicity arising from the first Trial Mr Justice GS refused to stay the indictment the trial proceeded on 2 July letby was convicted of attempted murder on five July she was sentenced to a further term of life imprisonment with a whole life order let be now applies for leave to appeal against her conviction in July 2024 the sole ground of appeal is that the judge thir in refusing to stay the proceedings she's represented today by Leading and Junior Council who have been Instructed by her throughout it is necessary to say at the outset

what this application does not concern uh since the convictions in August 2023 there has been significant media coverage of the basis for those convictions this has involved a critique of the medical and scientific evidence called at the first trial some of the public comment has called into question whether letbe ought To have been convicted in August 2023 we are not concerned with the first trial that was the subject matter of this Court's judgment in July 2024 whether there are or may be issues arising from the first trial which have yet to be the subject of

judicial consideration is not for us to say that would be speculative this application will not involve any detailed analysis of the evidence called either at the first Trial or the retrial Our concern is solely whether the trial judge was wrong to rule that letby could not receive a fair trial in June 2024 and that it would be fair to try her this will involve principally discussion of the publicity given to her case the basis upon which a judge in the Crown Court will stay procceedings and as an abuse of the criminal process is very well

Settled the principles and the authorities establishing them were reviewed comprehensively by this court in bkr reported at 20124 one weekly law reports 1327 neutral citation 20 23 ewca Crim 903 at 34-50 the core principles were again helpfully summarized in nug 2024 ewca Crim 493 at 21 to 25 we do not propose to repeat that exercise the first type of case in which abusive process may be established is where an accused could not receive a fair trial in this instance the argument is that the media coverage of let's convictions reflecting in emotive language the nature of

the offenses and the revulsion at the underlying Behavior was so great and sustained that no jury would be able to give the issues in the Retrial fair consideration it was described to us as a campaign the extent of the coverage and the notoriety of the case was such that there could be no Prospect of any juror's memory of the coverage having faded no Direction given by the Dr Judge could remedy the position the second type of abuse arises when it would offend the Integrity of the criminal justice system for a trial To proceed where that

type of abuse is alleged any Prejudice to the accused has to be be balanced against the public interest in trying serious criminal offenses in this case the submission is that following the convictions in August 2023 and before the making of the reporting restriction on 25 September 2023 police officers and representatives of the crown prosecution service engaged in sustained hostile commentary about Letb offending there was reference to further investigation into her activity at the CEST of Chester Hospital suggesting that her criminality went far beyond the offending represented by her convictions it's argued that the police and

the CPS knew that a retrial was at least a possibility in those circumstances it was completely unacceptable for them to engage in Public discourse in the way that they did the behavior by those involved in the prosecution process offended the Integrity of the just criminal justice system so as to require a stay of the proceedings these submissions were made to Mr Justice Goss in a written ruling having accurately set out the principles to be applied uh he dealt with the outcome as follows quote I am satisfied that any Prejudice To the defendant from the publicity

in the media is not such as to preclude the defendant from having a fair trial the evidence of her convictions will be inevidence before the jury it will be subject to the necessary directions of the jury as to the use to which they may and may not put this evidence they will also receive a direction as to the importance of reaching a verdict on and only on the evidence placed before them and nothing Else experience has shown that juries can be relied upon Faithfully to follow such directions the media coverage will in any event have

been diluted by the quote fade Factor unquote since the verdicts in the original trial were reported in relation to the second limb of abuse justifying it a stay even applying a broad interpretation of misconduct none of the matters raised by the defense individually or collectively amounts to Misconduct even if any do it does not justify the remedy of Last Resort of a stay on the grounds of abusive process when weighing the public interest in ensuring those charged with crimes should be tried against the competing interest of maintaining confidence in and the Integrity of the Criminal

Justice System un fairness to the defendant is not required to this limb the focus is on whether a stay is appropriate in Order to safeguard the Integrity of the Criminal Justice System the matters raised by the defense can be addressed and accommodated by the trial process including any suggestion of malpractice or financial or other motives for untruthfulness on the part of any witness the accounts Witnesses have given of events at any time are all matters of record and available to be induced and challenged in the trial Process the fairness of the trial is not compromised

nor could the Court's sense of justice and propriety be offended or public confidence in the criminal justice system be undermined by the trial proceeding unquote uh this was an exercise of judgment by the judge thus we must assess whether his decision was wrong this is to be contrasted with the exercises of a discretion where we would be considering whether decision was one Open to a reasonable judge having said that we must give substantial weight to the fact that Mr Justice GS had been the judge throughout the proceedings he had conducted the first trial he was

fully aware of the factual nature of the case to be put to the jury in the retrial and to that we must add the fact that his experience as a criminal judge is unrivaled it follows that his judgment must be afforded very considerable Respect as is Apparent from the Judgment handed down by this court on 2 July 2024 the first trial involved a wealth of scientific and medical evidence from an array of expert Witnesses in relation to the counts of which letby was convicted in August 2023 the evidence was circumstantial some of the evidence related

to let be herself Reliance was placed on the following Matters her ubiquitous presence when babies died or suffered collapse creating false entries on documents with the apparent intention of concealing her unlawful activity taking home Handover documents apparently connected to the babies who had died or collapsed searching Facebook for the families of babies who had died making statements in private notebooks consistent with Guilt a great deal of expert evidence was call various causes of death or intended death were identified a emulous caused by air being injected into the vascular via intravenous l Minds air forced down

a n nasogastric tube insulin poisoning overfeeding with milk trauma these alleged causes of death were the subject of expert evidence this evidence was challenged in The course of the trial particularly in relation to the proposition that babies had died because of an air embolism caused by Del deliberate injection of air letby herself gave evidence denying any unlawful act towards any baby in her care the case against letby which was tried in June and July 2024 did not rely on Expert evidence to demonstrate the unlawful act carried out by Her rather the prosecution relied on the

evidence of a do gam a consultant pediatrician who worked at the neonatal unit it the baby who was the subject of the trial was extremely premature and had been intubated on her arrival on the unit shortly afterwards Dr gyam came to the area where the baby was being cared for to find letby by the baby's cot the monitor showed that the baby had a dangerously low blood oxygen level Desaturation let was doing nothing nothing to assist the baby whether by administering oxygen or calling for assistance the cause of the desaturation was that the endot tral

tube had been dislodged the prosecution case largely depended upon the jury accepting the evidence of Dr gyam his evidence was the subject of significant challenge the suggestion being that his account of let acts and emissions that was Wrong Mr Justice Goss was provided with a very substantial body of digital material showing the level of publicity the defense compiled a schedule of media content intended to give examples of the kind of coverage there had been the schedule contained links to particular online articles or reports these 64 entries on the schedule 59 related to coverage in the

days following the final verdict of the jury In August 2023 most of the coverage was close to the date of the verdict although it did continue sporadically until 25 September 2023 we have read all of that material in written submissions Mr Myers Kings count C and Miss Clancy have emphasized the following Daily Mail podcasts in August and September 20123 including discussion with the police officer in charge of the Investigation and a police officer who interviewed letby the former referred to letby being able to manipulate others at the unit so she was able to get away

with murder the latter spoke of letby being one of the worst murderers of modern times a talk TV recording of an interview with one of the main prosecution witnesses uh expert Witnesses in which he said that what letby had done was beyond Belief similar posts by channel 4 news and Sky news reports in more than one media outlet that the police police were investigating further possible cases of the death of babies being caused by be the reports refer to the police looking into 4,000 admissions of babies into the unit BBC Panorama documentary with interviews with

parents police officers and a doctor from the hospital newspaper and online references To letby making comparisons with Myra hindley and Rose West and describing her as evil adverse comments by Leading politicians including rishy sunak the then prime minister about leb's failure to attend her sentencing hearing the submission to Mr Justice Goss and repeated to us was that the reporting of the trial and more particularly its aftermath was IM Motive although the factual presentation of the offending as found by the jury was accurate its effect was overwhelming and prejudicial to use the language of the written

submission the vitriolic nature of public comment and the prejudicial masses reported created exceptional Prejudice because the Prejudice created was based on a trial which had already taken place it could not be ameliorated by directing the jury to concentrate on The issues in the trial given the quantity of adverse material there could not be any fading from memory of what had appeared online in the press and on television we do not accept the applicant's argument the outcome of the first trial undoubtedly led to an unusually large amount of publicity and online debate that is because on

its facts the case was Extraordinary simply because the extent of the publicity was much greater than would normally be the case of itself did not generate Prejudice for a neon ntal natal nurse to murder seven babies in her care was a startling fact even if no police officer or other commentator had said anything about letby being comparable to other notorious murderers or used extreme adjectives to describe her the mere fact Of her offending would have created that effect in relation to the more emotive language used the fade Factor would be significant from 25 September 2023

onwards the reporting had been limited what would remain in juror's Minds would be the fact of lebis offending that fact was before the jury as evidence in the case the judge directed The Jury about the previous convictions in these terms if you are sure that the defendant's Convictions show that she has such a tendency to commit offenses of this type then this may support the prosecution that she attempted to murder the baby it's for you to say whether it does and if so to what extent but you must not convict her wholly or mainly because

of those convictions the fact that she's been convicted of the offenses in the past does not proved that she committed this offense on this Occasion previous convictions may only be used as some support for the prosecution case if having assessed the evidence you're satisfied that it is right to do so in those circumstances we conclude that the judge was right to find that letby would be able to have a fair trial we take into account the fact that almost all of the material of which complaint now is made emerged in the week immediately following Conviction

the prosecution relied on what they termed the fade Factor we consider that they were right to do so in our judgment it is of some significance that the critical issue for the jury was whether they were sure of the evidence of Dr gyam a legitimate criticism could be made of his evidence although he believed that letby had deliberately dislodged the endocr Endo tral tube he had said nothing at The time nor for many months after there was an inconsistency between his evidence and the contemporaneous records the nature of the case being considered by the jury

was fact specific had the jury known nothing of the outcome of the previous trial the publicity surrounding it would have been a significant factor but since the convictions were in evidence the publicity was of far less effect the Prejudice came from the jury knowing That letby had been convicted of 14 offenses of murder and attempted murder that prejudice as a matter of law was outweighed by the probative value of the convictions had it been otherwise those convictions would not have been admitted in evidence before leaving the issue of whether Ley was a ble to have

a fair trial we must deal more particularly with the position of Dr JY Ram Mr miles and Miss Clancy argued that his position was especially problematic he had given evidence in the first trial when the jury had disagreed on the count where his evidence was critical following Le's convictions he'd been interviewed by a variety of outlets and had commented on social media about the case the schedule of material relating specifically to him indicates that he ceased to comment once it was known There was to be a retrial in relation to the count with which he

was particularly concerned but the submission is that his public statements prior to that were quote extraordinary unquote given his position as a witness we do not agree with that proposition we have reviewed the material Rel relating to Dr gyam with care we could not identify any matter relating to letb which significantly departed from or added to the evidence He gave in the two trials he made comments about the extent to which those with overall charge of the neonatal unit bore responsibility for what had occurred that could not have prejudiced the case against letby in the

course of the retrial Dr gyam was cross-examined about what he had said in one interview given after the first trial this was not in order to criticize the fact that he had been interviewed Rather the content was used to make a fentic point on behalf of letby as to what the witness had said previously about her actions the argument in respect of the second type of abuse is that the police and the crown prosecution service made comments after the verdicts in August 2023 which were unacceptable and inexcusable in the course of the argument before Mr

Justice gos Mr Myers accepted that those comments were not Made in bad faith nor did they amount to misconduct Mr Myers categorized them as quote ill judged unquote nonetheless he argued then as he does now that what the prosecution and the police said meant the trial would and in the event did offend the Integrity of the Criminal Justice System police or prosecutorial misconduct is generally recognized as the first requirement in any finding of This species of abuse the cases at cited at 35 to 43 of bkr confirm this we accept that misconduct in the conventional

sense is not the only basis for concluding that it would not be fair to try a defendant that is clear from the citation of Norman 2016 ewca Crim 1564 in bkr however for criminal proceedings which would be fair to the accused to be Stayed something very much out of the order orary must have occurred Mr Meers said that the police had embarked on a media campaign in emotionally charged circumstances we consider that this is an overstated description of what the police officers did the trial of Lucy leby was a matter of national public interest once

the trial had concluded there was an inevitable Demand on those With a close knowledge of the case to speak to the media what was said by police officers was not wholly restrained they described the offending as horrifying and the person responsible as evil but they did so after a jury had found that letby had murdered seven babies the notion that after a substantial criminal trial police officers involved in the investigation Should not speak to with a degree of freedom to the media is fanciful if a person is convicted of multiple offenses of the kind with

which we're concerned what the police say about the person is bound to be hostile it could hardly be otherwise does not make the comments of the police akin to misconduct it's said that this case was different because there was at least the prospect of a retrial this did not materially affect The position letby had been convicted of seven counts of murder and seven counts of attempted murder she was senten for those offenses the trial judge did not impose any restriction on reporting of the sentencing exercise nothing said by the police officers went beyond what would

have been apparent to the jury as soon as they were told of the nature an extent of the other Offending reporting of the outcome of the first trial included material relating to continuing investigation by the police it was reported as follows quote police are now investigating 4,000 admissions made into neonatal units at the CEST of Chester Hospital and the Liverpool Women's Hospital where letby spent time training between 2012 and 2016 the probe is a continuation of op op a hummingbird the investigation into The deaths and nonfatal collapses at the couns of Chester Hospital detective superintendent

Paul Hughes who led the investigation said this does not mean we are investigating all 4,000 it just means we are committed to a thorough review of every admission from a medical perspective to ensure that nothing is missed throughout the entirety of her employment as a nurse in written submissions Mr Myers and Miss Clancy said that the remarks of the Police officer quote were quote lamentable unquote we disagree the officer said that in the light of the findings of the jury it was appropriate to review the entirety of Le's career as a nurse that was an

unexceptional comment the figure referred to was simply the number of babies who had passed through the relevant units during the relevant Time the police officer cannot be criticized if journalistic hyperbole therefore created a false impression the judge identified that to stay a criminal trial because it would offend the Integrity of the justice system always always will be the remedy of Last Resort it is an exceptional step to take it was not justified by the circumstances in this case the judge was entirely correct to find that it would not be unfair to try Lucy leby for

the Single offense of attempted murder it follows that we refuse her application for leave to appeal against conviction we repeat what we said earlier this application related to a narrow legal issue nothing we have said can contribute to any debate about the wider case against Lucy Ley Mr Myers Mr Johnson thank you both very much for your very helpful written submissions and to your Juniors and to those others who support you we we we Were greatly assisted thank you thank you very much