David Davis

There is a case in justice for a retrial in my view, but there is a problem—I would say it is a technical problem. One of the problems we face is that much of the evidence was available at the time. What I have described is an expert analysis of the case notes that were there at the time, but it was simply not presented to the jury. That means that the Court of Appeal can dismiss it, basically saying that the defence should have presented it at the initial trial. It is in essence saying, “If your defence team weren’t good enough to present this evidence, hard luck, you stay banged up for life.” That may be judicially convenient, but it is not justice. This has been a historic problem in Britain, delaying the resolution of a number of miscarriage of justice cases. Secondly, the so-called expert evidence in this case largely amounted to putting together theories suiting the prosecution case, from the bogus statistical arguments through to the wrong diagnoses I have just detailed. Again, this problem is not new. In 2011 the Law Commission made a number of recommendations precisely on the handling of expert evidence. There is even a section in it entitled, “Inferring murder from unexplained infant deaths.” Those recommendations have not made it into law nearly 15 years later, and it is past time that was put right. Perhaps most worrying of all in this case is that it is just the latest example, more than a decade after the Mid Staffs scandal, of the national health service’s inability to analyse its own failings. This matters because until we learn these lessons, there will continue to be unnecessary deaths in hospitals up and down the country. My central argument today, which comes back to what my right hon. Friend asked me, is about what to do about a trial which, in my view, is a clear miscarriage of justice by a judicial system that could not manage admittedly difficult statistical and medical scientific evidence. The only body available to correct this today is the Criminal Cases Review Commission. In my view, it should look at all the new diagnoses when they come out, and if necessary consult the leading neonatal and statistical authorities in the land—the most expert people, who are much more equipped to give proper assessment than the experts who were employed by the police at the time. As a result, in my view it should order a retrial, and it should do it quickly. This is significant because the CCRC has recently been criticised—Members may have read about it in the Andrew Malkinson case, where there was effectively a 17-year delay in releasing him from prison. DNA evidence proving him innocent of the rape he was convicted of was known four years after his conviction, yet it took a further 13 years to correct it. That cannot happen again. We cannot repeat that. If, as I believe it will, a retrial clears Lucy Letby, she should be released in her thirties, not in her fifties.