R v Lucy Letby

A stay for abuse of process is exceptional. Extensive and emotive publicity does not itself establish that an accused cannot receive a fair trial. The court must assess the particular trial, including the passage of time, the evidence properly before the jury, and effective directions that the verdict must rest only on the trial evidence.

A stay to protect the integrity of the criminal justice system is a remedy of last resort. Police or prosecutorial misconduct will generally be required, although exceptionally other conduct may suffice. The court must balance the relevant prejudice against the strong public interest in trying serious crime.

The applicant, a neonatal nurse, had previously been convicted of multiple murders and attempted murders of babies in her care. Following a re-trial on one count on which the original jury had not reached a verdict, she applied on the first day of that trial to stay the indictment as an abuse of process.

She contended that extensive publicity following the earlier convictions prevented a fair trial. She also relied on post-verdict comments by police and prosecuting representatives, and alleged that proceeding would offend the integrity of the criminal justice system. Goss J refused the stay. The applicant was convicted of attempted murder and sentenced to life imprisonment with a whole life order. She sought leave to appeal solely against the refusal to stay.

1. Application for leave to appeal refused. The trial judge was correct to decline to stay the indictment. The appeal court reviewed whether his evaluative decision was wrong, rather than whether it lay within the range of a reasonable discretionary decision. Considerable respect was due to his knowledge of both trials and his exceptional criminal trial experience.

2. The publicity was extensive and sometimes emotive, but its quantity did not itself establish unfairness. Much of it appeared shortly after the first verdicts and had been reduced by the reporting restriction. The passage of time was therefore material. The enduring fact likely to be known by jurors was that the applicant had committed serious earlier offending, and those convictions were properly before the jury as evidence.

3. The judge gave clear directions that the previous convictions could provide only some support for the prosecution case, could not be the whole or main basis for conviction, and did not prove the new allegation. The re-trial turned on the fact-specific reliability of Dr Jayaram's evidence. Legitimate challenges to that evidence were available. Publicity had substantially less potential effect because the convictions themselves were admissible evidence, whose probative value outweighed their prejudice.

4. The court also rejected the integrity-based abuse argument. Applying the settled principles reviewed in BKR [2023] EWCA Crim 903, police or prosecutorial misconduct is generally the first requirement for this form of abuse. Although misconduct in its conventional sense is not invariably essential, a fair criminal trial should be stayed on that basis only where something very unusual has occurred.

5. The post-verdict comments were not misconduct. They followed convictions for exceptionally grave offences, did not exceed what the jury would learn from the admissible convictions, and the police statement about reviewing admissions during the applicant's employment was unexceptional. A stay, as the remedy of last resort, was not justified.

• Court of Appeal (Criminal Division): Refused the applicant leave to appeal against conviction: [2024] EWCA Crim 1278.
• Crown Court at Manchester: Goss J refused an application to stay the indictment for abuse of process at the start of the re-trial. The applicant was subsequently convicted of attempted murder and sentenced to life imprisonment with a whole life order.