Clonoe Inquest

Debate between David Davis and Jesse Norman

Wednesday 2nd April 2025 Commons Chamber

[David Davis]

The hon. Member is exactly right, and he prefaces what I intend to say. He repeats the point that his party leader made in the urgent question, when he said that the judgment was ultra vires. I believe the right hon. Gentleman was right in that, although I leave that to the lawyers.

To answer the rest of the question from the hon. Member for Strangford (Jim Shannon), we have to return to the actual facts of the Clonoe incident. The self-styled East Tyrone brigade was one of the most active Provisional IRA units. In the late 1980s and early 1990s, it undertook a surge of activity, pursuing a Maoist-style murder strategy. I think it was called Lynagh’s strategy at the time.

In August 1988, eight soldiers were killed by a Provisional IRA bomb at Ballygawley. On 7 March 1989, two Protestants were shot dead at a garage in Coagh. A former member of the Ulster Defence Regiment, Derek Ferguson, was murdered in 1991, also at Coagh. An attack against Glenanne barracks on 31 May 1991 left three soldiers dead. It is also thought that some of their members were involved in the Derryard attack in 1989, notably using a heavy machine gun, probably the DShK we will see later in this story, to kill two British soldiers.

In February 1992, the RUC special branch found out that the IRA was planning a number of attacks on 15 and 16 February. It had information that an IRA team, armed with a 12.7 mm Soviet DShK heavy machine gun and three Kalashnikov rifles, would attack the Coalisland police station. The intelligence indicated that the attack would be mounted from the Clonoe chapel car park, so the SAS commander’s plan was to arrest the terrorists as they formed up at the car park, preventing the attack on the police station altogether and seizing the heavy machine gun.

The commander did not know how many terrorists, vehicles or weapons would be involved, but it was thought that as many as 20 IRA members could be involved. The troop sergeant assessed the rather straggly hedge line adjacent to the car park to be the only suitable position where partial concealment was possible, but it notably did not provide cover from gunfire. The SAS team carried the standard Heckler & Koch G3K rifle and one soldier had a general purpose machine gun. Perhaps more notably in this context, some had shotguns loaded with alternate rounds designed to smash windscreens and deliver tear gas to immobilise the drivers and stop the vehicles. The soldiers also carried caltrops to wreck the tyres of vehicles attempting to escape. The armour-piercing rounds that the judge referred to could penetrate body armour, but their primary purpose in this context was to penetrate the engine blocks of the vehicles and stop them.

The equipment was all designed to stop escape and allow arrest—that is the key point. The plan was to close in on the IRA operatives and to arrest them as they assembled and mounted the heavy machine gun on to the vehicle in the chapel car park. At 7.40 pm on that dark February night, 12 members of the SAS were in position on the boundary of the Clonoe chapel car park, behind the hedgerow. The soldiers observed the movements of five cars in and out of the car park. They were assumed to be reconnaissance vehicles scouting out the car park for the lorry to which the DShK was to be attached.

However, the intelligence briefing was wrong—an error that ended up creating chaos and extreme danger. Instead, at around 22:40 hours, the lorry-mounted DShK was used to attack the Coalisland police station. Sixty rounds were fired at close range from the DShK and from the Kalashnikovs. As the hon. Member for Strangford (Jim Shannon) said, the attackers’ intent was clear: to kill police officers. They were all would-be murderers; of that, there can be no doubt. The gunfire could clearly be heard and the tracer bullets were observed by the SAS patrol in the car park at Clonoe.

After a minute or two, the soldiers heard another burst of gunfire. The soldiers, of course, did not know that that was simply bravado. For all they and their commander knew, hiding behind their hedge, the murder gang were engaging other soldiers or other policemen. Within a minute, the lorry appeared out of the darkness, driven at breakneck speed, lurching around corners and with its engine screaming in too low a gear. As it drove into the car park, the IRA truck’s headlights illuminated the SAS position behind the hedgerow. At that point, the soldiers did not know whether they had been spotted. The soldiers then stood up, advanced on the occupants of the lorry and three other vehicles in the car park with the lorry, and opened fire. Four IRA members were shot dead, four were wounded, one of whom was arrested at the scene and, notably, given first aid by the soldiers, and others fled in cars.

Now we come forward to February 2025, when Mr Justice Michael Humphreys ruled that the use of lethal force by the SAS in this incident was unlawful. The ruling is demonstrably wrong and ignores the plain facts of the case. The SAS soldiers operated under the control of the police force, and the operation was carried out with police officers in close proximity. They faced heavily armed terrorists who had just carried out an attack on a police station—lethally, for all they knew. They did not know how many terrorists there were, but they assumed that there could be up to 20. They did not know how many vehicles there were or how many weapons were in the other cars. That creates a number of problems for issuing a challenge, which is the first option under the yellow card system. While it may be reasonable to stand up and issue a challenge to either one terrorist or a small number of terrorists who could be seen and covered while they respond, the circumstance is completely different when there is an unknown number of antagonists in an unknown number of cars with an unknown number of weapons.

The probability of one of 20, let us say, deciding to fire on the soldiers is much higher, particularly when that individual may be out of sight of the patrol. That is doubly so when one remembers that this band of killers had just attempted to murder many policemen and had returned in a high state of excitement, pumped up with adrenalin and firing their weapons in the air. Secondly, the fact that the SAS commander did not know where they all were meant that his issuing a challenge could expose his entire troop to a lethal crossfire. Remember: this was happening on a dark February night at about 10.45 pm. Issuing a challenge under those circumstances could have amounted to collective suicide. Circumstances such as that are precisely why the yellow card rules allow a soldier to fire without challenge when the danger is too great.

I find it hard to imagine a more clearcut case that allows firing without challenge, but in his ruling the judge ignored several significant facts and appears to have been naive in his view of others. His selection of facts appears to be extremely partial. For example, the judge made much of the SAS’s use of armour-piercing bullets, but he made no mention of the fact that the anti-aircraft gun the IRA was using fired armour-piercing incendiary rounds five times the size of any rifle bullets, or the fact that they could be fired at a rate of 600 to 1,200 rounds a minute. Those bullets can pierce concrete walls or shoot down aircraft at a mile range. The machine gun had just been deployed and could have eliminated the entire SAS patrol in a matter of seconds. It was a terrible weapon, and capturing it before it could be used to kill more people was an important part of the SAS tasking.

The judge accepted assertions that the IRA weapons all had their safety catches engaged. Frankly, if that were true, there was no way at all for the SAS commander or the troops to know that at the beginning of the fight. In fact, how likely was that? Let us take the DShK, which the forensic examiner said had its working parts forward, with no round in the chamber. The gun was mounted on a lorry that had just been driven back at breakneck speed from Coalisland in a few minutes. During the few minutes of that journey back, getting the gun into the state described would have required nine actions, some of which require two hands, while hanging on to the side of a lurching truck. I am afraid it all sounds just a bit improbable. The forensics specialist did not actually arrive until two hours and 45 minutes after the action, at a scene contaminated by firemen, police, soldiers and other staff—indeed, she complained about that very contamination.

Against the forensic specialist’s views, we must take the observations of soldiers on the ground and other evidence. Four soldiers reported seeing flashes from the back of the lorry, which they interpreted as muzzle flashes. We are not talking about inexperienced soldiers: they would know what they were looking at. Two soldiers heard rounds striking the ground to their right, near the hedgerow where the SAS was hiding. The forensic examiner documented bullet strike marks on the hedgerow. One soldier received a bullet wound to the face that knocked him to the ground. Without any forensic evidence, it was attributed to a ricochet, which implausibly would have required the round to go through a 180° change of direction.

Soldier G heard the exchange of gunfire and saw a soldier go down, which

“confirmed my belief that the terrorists were shooting at us”.

There was also an interview taken by the Garda, in the Republic of Ireland, of one of the IRA drivers, who said he could not understand why his colleagues had opened fire. He had been in a position in which he was able to judge where the fire was coming from and obviously believed that it was from his own side. He refused to sign the interview notes, presumably when he considered the consequences for him back home of giving away such critical data.

All of this was countered by the claim that no bullet casings were found on the ground in the car park, but a number were found in the lorry, and one of the cars present appeared to have had a general-purpose machine gun and an AKM on board. If those weapons were fired from inside a car, there would of course have been no casings on the ground in the car park. Instead, GPMG live ammunition and disintegrating links were found in that car, as well as an AKM casing from a rifle other than those recovered, implying that a fourth AKM had been fired from the car. The car had all its seats other than the driver’s laid flat, which was standard practice for the IRA when using a hatchback as a weapons platform. The car escaped and was then set on fire, and the fire services were kept away from it while it burned out—another standard IRA tactic to destroy forensic evidence. I am afraid that this ruling exposes the double standards that have plagued the legacy of the troubles.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

My right hon. Friend is giving an important and telling speech on a very important topic. As he rightly says, these soldiers were subject to well-defined rules of engagement. He has described the IRA as a terrorist organisation, but what he has not said is that at the time, it was the most sophisticated terrorist organisation in the world. The soldiers he talks about were operating under orders, in a chain of command and on the Queen’s business, and could not respond. Does my right hon. Friend agree that there is a grotesque double standard here, and that not only is this an injustice, but the Government’s position is potentially deeply corrosive of morale, as well as deeply unjust to the veterans?

[David Davis]

My right hon. Friend makes a very good point. Of course, he is the Member for Hereford, so many of the people who have retired and will face these threats will be his constituents. He and I are long-standing supporters of human rights in this country, and have both defended article 2, for example, but this case is a misuse of article 2. The people who wrote the European convention on human rights were recently out of the second world war—they did not write it to be interpreted in this way. He has made a double point.

Returning to my right hon. Friend’s point about the IRA, since the events in question, the Good Friday agreement has allowed for the release of convicted terrorists in order to achieve an end to the bloodshed. I guess we all agree with that, yet we continue to persecute those who fought against the terrorists. These persecutions are conducted decades after the fact, without any new evidence being presented to give reason for the reopening of cases. After the action, everybody involved was questioned thoroughly to establish the facts—what the intelligence was, what the arrest plans were, and what happened. On the basis of that questioning, on 15 October 1992—with the evidence close to hand and the events fresh in the witnesses’ minds, and when investigation of everything was possible—the police and the Director of Public Prosecutions for Northern Ireland concluded that there should be no prosecution of the soldiers. There was no case to answer.

Trial of Lucy Letby

Debate between David Davis and Jesse Norman

Wednesday 8th January 2025 Commons Chamber

[David Davis]

No, I am afraid I will not—I am short of time.

Again, that section of the report was never shown to the jury. Those consultants then persuaded management to call the police in April 2017. There was no hard evidence against Letby. Nobody saw her do anything untoward. The doctors’ “gut feeling” was based on a coincidence: she was on shift for a number of the deaths, but—and this is important—far from all of them. The case was built on a poor understanding of probabilities that was to translate later into an influential but spectacularly flawed piece of evidence.

Around that time, the hospital was struggling with another problem—and possibly a more sensible explanation for this sudden increase in deaths. Leaked reports show that the hospital, and specifically the neonatal unit, battled a Pseudomonas aeruginosa infection for months. That antibiotic-resistant bug posed a serious risk to the babies. The child mortality rate for Pseudomonas aeruginosa ranges from 14.5% to 50%, and stands at over 55% for infants of extremely low birth weight, such as those in this case. It is hard to see how we can eliminate that as the cause of death or collapse for at least some of those babies. Again, the jury never knew about that contamination.

From the start of the case, Cheshire police picked up on the doctors’ statistical arguments supposedly pointing to Letby. In April 2018, an officer on the investigation approached a leading statistician, Professor Jane Hutton, and asked her to put a figure on the likelihood of a nurse being on duty “during all the deaths/collapses” in the unit. Of course, that is a false proposition, as Letby was not on duty for anything like all the deaths—as we will see later—but that was glossed over at the trial. Notwithstanding that, Professor Hutton informed the police that any proper statistical inquiry should not concentrate on one staff member from the outset. Instead, it would require full, proper research into all possible explanations for any increase in babies collapsing, including their medical conditions and prematurity, as well as the broader performance of the unit. One would think that would be common sense.

Cheshire police then signed a consultancy agreement with Professor Hutton, but in 2021, after Letby had been charged, the police wrote an email to Professor Hutton, stating:

“We have had a further meeting this afternoon where we have informed the prosecutors that we were looking at the validity of statistical evidence again in the case… The prosecutor…has instructed us not to pursue this avenue any further at present.”

This appears to be in direct contravention of part 3.3 of the code for Crown prosecutors, which states:

“Prosecutors cannot direct the police or other investigators.”

Again, the jury was never informed of Professor Hutton’s explicit advice to the police that their statistical approach was flawed. This matters enormously, because the most powerfully influential piece of evidence in the case was the prosecution King’s counsel showing a table with Letby listed as the only nurse on duty for all of the alleged murders and inflicted injuries. Professor Hutton, who has reviewed the case extensively, believes that deeply flawed statistical evidence was used, and has said that the statistical errors are “similar to those…in the Sally Clark case but worse.” Sally Clark was convicted and then acquitted of the murder of her two sons based on flawed statistical evidence.

In May 2017, Dewi Evans, a retired doctor who runs a business that provides highly paid medical “expert evidence” in court cases, approached the National Crime Agency to volunteer his services. Evans’s opinion that Letby injected air either into the babies’ veins, causing air embolism, or down the nasogastric tube into the stomach, stopping the babies’ breathing, was one of the foundations—indeed, probably the major foundation—of the prosecution case. This supposed evidence is hugely controversial. Three months into the murder trial, Letby’s defence team applied for evidence from Dewi Evans to be excluded due to an adverse judgment from a judge in a previous case, who said that a report by Dr Evans was “worthless” and

“makes no effort to provide a balanced opinion”.

In an extraordinary and—as far as I can see—unprecedented intervention, that very judge, Lord Justice Jackson, actually wrote to the trial judge with his judgment on Dr Evans attached, clearly indicating how unsuitable Evans was as an expert witness.

Evans’s assertion of murder by air embolism was entirely based on a research paper from 1989, and its relevance in these cases has been robustly challenged by the actual author of that paper. Evans changed his opinion on several key issues during the trial, and is now accused by Letby’s lawyer of changing his opinion again since the end of the appeal process. Evans disputes this, but if Members are interested, I suggest that they compare his evidence recorded in the trial transcript of 1 November 2022 with his signed statement to Channel 5 on 3 August 2024 and decide for themselves. It is also the case that Evans has submitted a new report to the police. What is extraordinary, however, is that the Crown Prosecution Service has refused to provide a copy of that report to Letby’s current defence counsel.

Questions have also been raised about the second expert witness for the prosecution, Dr Sandie Bohin. Eight families are currently filing formal complaints against her over their children’s care, which are being considered by the General Medical Council.

That brings us to the actual cases and causes of the deaths. Two expert neonatologists—consultant working neonatologists—are working through the cases to establish the actual causes of the babies’ deterioration and deaths. They are doing so thoroughly, so this is taking time. So far, they have completed two detailed case reviews for babies O and C. There are five more that will be completed in the near future.

In the case of Baby O, the prosecution claimed the baby was attacked with blunt trauma to the liver and had air injected into the nasogastric tube. The case notes tell a different story, showing how the doctors used excessive ventilation pressure during resuscitation, which overinflated the baby’s lungs and prevented blood from flowing back to the lungs. This caused the baby to desaturate his blood oxygen level repeatedly. The medical team responded by increasing the pressures even more, initiating a downward spiral in the baby’s condition. The overinflation of the baby’s lungs forced the diaphragm downwards, pushing the liver into the baby’s abdominal cavity.

The consultant in charge took a decision to insert a needle into the abdomen to release what they thought was gas pressure in the abdomen. However, this was wrongly inserted into the right side of the baby’s abdomen. As a result of this error, the needle penetrated the liver, causing serious internal bleeding. This was undoubtedly a significant contributory factor in the baby’s death, if not the outright cause. The report states that the

“deterioration was predictable, and his death was avoidable and resulted from suboptimal care.”

The author of that sub-optimal care, the doctor who inserted the needle into the liver, was one of the principal accusers of Lucy Letby at the trial. This directly contradicts the prosecution’s portrayal of events. The trauma to the liver was caused by a serious error by one of the consultants who led the accusations against Letby. The experts also stated that there was no air in the gut in excess of what would be expected for a baby in these circumstances. None of this was made clear to the jury. The prosecution’s evidence was again predicated on Dewi Evans’s diagnosis, which in this specific case alone changed multiple times.

In the case of Baby C, the prosecution claimed this was a healthy baby killed by air being injected into his stomach. The case notes for Baby C demonstrate that this baby was actually profoundly unwell before birth. The baby suffered from severe foetal growth restriction. This meant the baby had to be delivered by caesarean section at an extraordinarily low birth weight, even for that gestation, of 800 grams or about 1.75 lb. Within an hour of birth, he developed respiratory distress. To treat the respiratory problems, they tried to deliver surfactant, a mixture that helps babies’ lungs to expand better—open up—down an endotracheal tube.

The case notes, however, show that the doctor pushed the tube too far in, pushing it into one lung, meaning that the other lung was left collapsed. In the days after the baby’s birth, he showed several signs of abdominal obstruction, including the vomiting of bile, and he never opened his bowels since birth, which the doctor in charge did not recognise or diagnose. The report concludes by stating that this baby died of natural causes compounded by sub-optimal medical care. This again directly contradicts the prosecution’s narrative of deliberate harm. Dewi Evans’s diagnosis claimed the baby had air injected into the stomach, so he could no longer breathe. This was predicated on an X-ray showing an unusual amount of air on the stomach. It has become clear that Letby was not even at the hospital when the X-ray was taken, nor had she been at any point till then since Baby C’s birth two days earlier. While the baby died from natural causes, there is evidence of sub-optimal care, including

“the administration of surfactant and the lack of recognition and appropriate management of signs of abdominal obstruction”.

Again, the doctor responsible for these errors was another one of those who made accusations against Lucy Letby and, again, none of this was made clear to the jury.

There is a great deal of evidence demonstrating that there are much more likely alternative causes of these tragic deaths than those put up by the prosecuting team. The most likely is that the hospital’s neonatal unit was not up to caring for these fragile children, in terms of either resource or skill, and this shortcoming might have been compounded by other factors such as the Pseudomonas infection.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

My right hon. Friend will be aware that there is a family connection with my constituency of Hereford and South Herefordshire. What he says is deeply troubling and distressing on so many different levels, and I would like to ask whether his conclusion is that there is some case in justice to consider this an unsafe verdict.

[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.