Appendix 5. Chair's rulings

i. Livestreaming

1. A summary of the effect of this ruling is available on the Inquiry website.
2. Public hearings are scheduled to begin at Liverpool Town Hall in September of this year. On 30 April, I wrote to the Core Participants and Media inviting written submissions on the issue of whether or not, in addition to conducting the hearings in public, the inquiry should transmit proceedings to Core Participants and the Media via live links to locations remote from the hearing room and/or broadcast proceedings via livestream to the world at large. The note is at appendix 1 to this ruling.
3. Consideration of the issue takes place in the context of court orders made in R v Letby. There are three orders made in the Crown Court pursuant to sections 45 and 46 of the Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’), and an order of the Court of Appeal made pursuant to section 4(2) of the Contempt of Court Act 1981 at the hearing of an application for leave to appeal in April of this year. It may be that by the time of the substantive hearings in this inquiry the order of the Court of Appeal will have fallen away. The orders of the Crown Court remain in force and may only be revoked by the court that made the orders or an appellate court.
4. In short, the order of Steyn J made on 15 January 2021 under ss.45 and 46 YJCEA deals with the identification of babies as being concerned in proceedings and the identification of parents as being witnesses in those proceedings. The order of Goss J made on 7 October 2022 under s.46 YJCEA concerns the identification of several clinical NHS employees (nurses and doctors) as being witnesses in those proceedings, and the order of Goss J made on 2 March 2023 under s.46 YJCEA, concerns the identification of a further NHS doctor as being a witness in those proceedings. The orders bind the inquiry as well as the media and the public.
5. I directed that submissions should deal with the following factors:
   1. The importance of the open justice principle in the particular context of s18 of the Inquiries Act 2005;
   2. The need to avoid any risk of breaching orders of the Crown Court;
   3. The need for all witnesses to give their best evidence to the Inquiry;
   4. The need to avoid impeding the ongoing clinical responsibilities of any witnesses who still work in frontline NHS services;
   5. The need to avoid prejudicing criminal investigations or proceedings; and
   6. The practical effect of any suggestions made.
6. I heard submissions from Mr Peter Skelton, KC, on behalf of the parents of babies A, B, I, L, M, N and Q; from Mr Louis Browne, KC on behalf of the parents of babies D, J and K, from Mr Richard Baker, KC on behalf of the parents of babies C, E, F, G, H, O and P, from Mr Andrew Kennedy KC on behalf of the Countess of Chester Hospital NHS Foundation Trust and Mr Jude Bunting KC on behalf of nine media groups (1) Guardian News & Media (who publish The Guardian and The Observer); (2) BBC; (3) ITN; (4) Telegraph Media Group (who publish The Daily Telegraph); (5) Associated Newspapers (who publish the Daily Mail and Metro); (6) News Corp UK & Ireland (publishers of The Sun and The Times; (7) Reach plc (who publish The Daily Mirror and many local newspapers); (8) Sky News and (9) Pressdram who publish Private Eye. All had provided written submissions in advance.
7. NHS England (‘NHSE’) provided written submissions. They saw no difficulty with livestreaming or live links subject to the need for witness-specific special measures, any other restrictions considered necessary by the Inquiry “including specifically to take account of the need to avoid any risk of breaching orders of the Crown Court and/or the need to avoid prejudicing criminal investigations or proceedings” (paragraphs 6(b) and 6(e)) respectively of the Inquiry’s Note re Preliminary Hearing).
8. Ms Kate Blackwell KC, for the senior manager Core Participants, wrote to the inquiry to indicate that the senior managers were neutral on the issue of live linking/livestreaming.
9. My note was sent for information to Cheshire Police and the Crown Prosecution Service who acknowledged it, indicated their support for the inquiry, reminded me of the existence of the court orders and of the ongoing police investigations (although with an erroneous understanding that the Crown Court orders would fall away after the retrial. They will not).
10. In response to the written submissions, Counsel to the Inquiry, Ms Rachel Langdale KC, provided written submissions and made brief oral submissions after the advocates for the parents and the media to which I shall refer later in this ruling.

Definition of Terms

11. For the purposes of this ruling livestreaming means the live transmission of the proceedings of the inquiry from the hearing room to the world at large. Using live links/live-linking means the live transmission of the proceedings of the inquiry to individuals who have been given a non-transferrable link to observe the inquiry at a venue remote from the hearing room, within the hearing venue or elsewhere (e.g. at home, at the offices of a solicitor, the offices of a media organisation).
12. I shall deal in order with the factors set out in my note.

Open Justice and Section 18 of the Inquiries Act 2005 (the Act)

13. This inquiry is of profound importance. The Terms of Reference require an examination of matters of deep public concern. This will include close scrutiny of many events, the conduct of people involved and the decisions they made – as well as consideration of broader issues affecting the NHS. The principle of open justice applies not only to the hearings but also to the inquiry’s processes.
14. The reasons for the development of the principles of open justice (both at common law and in statute) are well known. It is not necessary for me to rehearse the development of those principles, save to note that between the Clothier Inquiry in 1993 into events at Grantham hospital where Beverly Allitt, a nurse, murdered babies and now, there has been a shift away from private to public inquiries in cases of huge public concern.
15. In R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, the Divisional Court (Kennedy LJ and Jackson J) heard a challenge by families of the victims of Harold Shipman on the legality of a decision of the Secretary of State for Health to set up an inquiry using a general power to provide NHS services under Section 2 of the National Health Service Act 1977, rather than a specific power to establish a statutory Public Inquiry. The Health Secretary’s decision was quashed for a number of reasons and he was directed to reconsider. In due course a statutory Public Inquiry took place. The court in Wagstaff relied on the observations of Clarke LJ in The Thames Safety Inquiry (into the sinking of the Marchioness) endorsing the observations of Sheen J in the inquiry into the sinking of the Herald Of Free Enterprise: “it is of great importance that members of the public should feel confident that a searching investigation has been held, that nothing has been swept under the carpet and that no punches have been pulled.”
16. The following additional uncontroversial propositions may be derived from the authorities:
    1. Holding hearings in public engenders public confidence because it allows scrutiny both of the process, including the conduct of the tribunal, and of the evidence.
    2. Evidence may come to light as a result of open hearings.
    3. Hearing evidence in public makes uninformed and inaccurate comment about the proceedings less likely (see Lord Woolf in R v Legal Aid Board ex parte Todner [1999] QB 966).
    4. When a witness gives evidence in public (whether in a court or some other quasi-judicial process, including an inquiry) the evidence is more likely to be candid than if given in private.
    5. The media are the eyes and ears of the public. Through careful observation and fair and accurate reporting those who are unable to attend hearings are informed as to the process, the submissions and the evidence, leading to greater public understanding.
17. As was said by Ms Langdale KC in her account of the work of the inquiry at the Preliminary Hearing, there has been some fine journalism covering the criminal trial. Documentaries and podcasts as well as detailed fair and accurate court reporting have informed the very large number of people who were intensely interested in the criminal proceedings.
18. Section 18(1)(a) of the Act provides that, subject to any restriction under s.19, “[the Chair] must take such steps as she considers reasonable to ensure that members of the public [including reporters] are able – (a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry”. As Counsel to the Inquiry points out, the duty is satisfied if either there is attendance in the Hearing Room or there is ‘simultaneous’ transmission. All Core Participants who dealt with this issue were in favour of the public and media attending the hearing by being present in the hearing room. Counsel to the Inquiry make the same submission.
19. As I indicated during the oral submissions that is my intention and the hearing venue has been chosen with that in mind. There will be seats in the hearing room for members of the public and for the media. Partitioning will be provided for families who wish to be present in the hearing room, but away from the public gaze. Rightly, no one argued that such an approach would not satisfy my duty under s(18)(1)(a). It more than satisfies that duty and, it follows, the requirements of open justice. Subject to any applications for special measures, witness evidence will be given in the hearing room, in public.
20. Section 18(2) of the 2005 Act makes clear that no recording or broadcast of the hearings is allowed, save as requested by or with the permission of the Chair (and subject to any conditions the Chair may set). My discretion is to be exercised in the context of the Crown Court orders.

The need to avoid breaches of the orders

21. Publication which would breach Section 45/46 YJCEA order is defined in s.63 YJCEA:

“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose any relevant programme shall be taken to be so addressed), but it does not include an indictment or other document prepared for use in legal proceedings

“relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.

22. I accept the submissions of Counsel to the Inquiry, with which no one disagreed, that, whether by publishing to the public at large a livestream, or a live-link, or a live-note (simultaneous transcript), the inquiry would be a ‘publisher’ of that transmission at common law (meaning “any person who publishes”: see the discussion of Warby J in Aitken v Director of Public Prosecutions [2015] EWHC 1079 (Admin) at [38]-[73]). The inquiry is legally liable for its publications but has a broad statutory immunity against civil actions pursuant to s.37(1) of the Act. However, as counsel pointed out, such immunity does not extend to immunity from criminal prosecution (e.g. under s.49 YJCEA for breaches of ss.45/46 Orders) or contempt of court, and the inquiry must not breach the ss.45 and 46 YJCEA Orders by including any matter which could identify (as witnesses or otherwise concerned on criminal proceedings) the subjects of those Crown Court orders in any ‘publication’ as defined by s.63 YJCEA.

Submissions on behalf of the parents

23. All three leading counsel for the families submitted that in addition to the proceedings being heard in public, the hearings should be livestreamed, that is broadcast to the world at large. Live links to invited participants would not suffice. They submitted that the public has come to expect livestreaming because that has occurred in a number of recent and current high-profile inquiries. They described it as “the modern approach” and “the new norm”. Counsel went so far as to say that a decision not to livestream would be a “derogation from that norm.” I do not accept that. Each inquiry is different. It is for the Chair to determine how to exercise his or her discretion, taking account of all the factors in play. The norm, or more accurately, the fundamental principle, is open justice.
24. I entirely understand, as Counsel for the parents submitted, that the parents want people (as well as Letby) to be held publicly accountable for what happened to their children. The Terms of Reference at Part B direct me to make detailed findings about what happened and whether the people involved should have acted differently and whether that would and should have prevented deaths and injury. Those involved have received very searching requests for statements with which they must comply. They will be subject to detailed scrutiny, giving evidence, in public. Where they are accountable I will hold them accountable, publicly. Whether I direct livestreaming worldwide or live links or neither will have no effect on the rigour of my approach, nor on the approach of all who have responsibility for helping me to get to the truth.
25. Counsel for the parents accept that livestreaming to the world at large would involve publication, as defined in the Act. They submitted that the risk of breach of the Crown Court orders could be managed by having a delay on the livestream of (variously) between 15 minutes and one hour. A breach can occur when a witness refers to a person by their name, often through inadvertence. It can also occur where pieces of information which, individually, appear irrelevant to a named person, but when taken collectively identify a person. This is known as jigsaw identification.
26. I accept that a delay in broadcasting, of up to 15 minutes, would allow the inquiry to remove a name, inadvertently mentioned, but a delay even of that length affects the ability of the press to report simultaneously and can disrupt the hearing by diverting attention from the evidence.
27. As well as suggesting that on occasion a delay on broadcasting of up to an hour may be appropriate, I was referred by Counsel for the parents to the approach taken in the Undercover Police Inquiry, a huge, long running inquiry. There, a separate legal team scrutinises the live evidence in order to ensure that orders made by the Inquiry Chair are not breached on publication. There, what is at stake (I understand) is the safety and privacy of people involved in the inquiry. The suggestion was that I should direct that the same or a similar approach be taken by this inquiry. I cannot accept that. It is not reasonable to look to the public purse to fund another team of lawyers to carry out a specialist exercise in order to facilitate livestreaming to the world when open justice is already secured in the arrangements for a public hearing. The fact that this was suggested indicates that the advocates recognise that the risk of breaches is real. I do not accept that this is a risk the inquiry should take. Not only is there a significant risk to the inquiry itself, I take account of the human cost of a breach. For a parent, who has already suffered so much, to be identified online, is unthinkable. I do not need to spell out the consequences for people who have made it clear from the outset that their privacy must be respected and protected. The proposed applications for special measures on behalf of the parents who may give evidence reinforce my view.
28. The final submission from all three counsel for the parents was the most eye catching. It was to the effect that livestream broadcasting would reduce or dispel toxic and offensive conspiracy theories. This submission was unsupported by evidence and I reject it. Searching for truth is not a characteristic of conspiracy theorists. Like those who promulgate fake news they search for information which supports their world view. When they find none, they manufacture it, often using and distorting video footage to be found on the internet. I say no more about their activities.

Submissions from Counsel to the Inquiry

29. Counsel to the Inquiry submitted that I should exercise my discretion and allow simultaneous transmission of the proceedings to all Core Participants, their lawyers and the media (on application and with appropriate undertakings) via live links to other rooms in the same building as the hearing room and to locations remote from the hearing venue – e.g. solicitors’ offices, media offices, homes. This would not involve publication within the meaning of the Act (because it is not to the public at large or to a section of the public). It would allow Core Participants to participate in the way they chose. It would be open to the media to report proceedings as they occur and to make application to broadcast excerpts. It would be open to witnesses to make applications for special measures, as appropriate.
30. Mr Bunting KC firmly supported the suggestion that live links should be provided, with no delay, to Core Participants and the media. He did not suggest that this was in any way a derogation from open justice. His submissions were to the contrary effect. He reminded me that the media know the identities of all the people who are the subject of the orders, as their representatives were there when the orders were made.
31. Most parents had indicated, through counsel, that they would choose to participate from a location away from the hearing venue. Others wanted to be in the Hearing Room. Of critical importance was that wherever they were, they should have instant access to proceedings so that they could instruct their lawyers whenever necessary. The arrangements suggested by Counsel to the Inquiry would permit that.

The need for all witnesses to give their best evidence to the Inquiry

32. As I said earlier, it is generally accepted that a person giving evidence in public is more likely to be candid than someone who is giving evidence privately. There is little information about whether there is a difference in the quality of evidence when the witness knows it is being broadcast live across the world or, perhaps worse, to family, neighbours, work colleagues, and so on.
33. I accept Mr Skelton KC’s submission that the hardest part of giving evidence, particularly for those who have not previously done so, is being required to speak publicly in an unfamiliar room full of unfamiliar people with everyone looking at you. He recognised that the overlay of knowledge that the evidence is being broadcast to the whole world would bring an additional layer of stress. However, he did not think that this knowledge would “tip the balance” by which was meant, I infer, that it would tip a witness over the edge into being unable to give their best evidence. In my view the extent to which broadcasting of all the inquiry hearing to the world affects a witness probably depends on a number of factors, including the personality of the witness, what they are going to say and how they think people hearing it will respond. I would accept that the thought of being observed by family, neighbours, work colleagues or others is unlikely to settle nerves.
34. It is unsurprising that many of the staff at the hospital, when informally asked about giving oral evidence, responded with anxiety and concern. Some of them gave evidence at the criminal trial so their experience has been of a very adversarial process. In their written submission the legal team for the Hospital observed that there was a “real risk that witnesses feel inhibited by the knowledge that their evidence is being livestreamed or broadcast”. That is a reasonable observation. The submission continued, “that they may be less inclined to speak frankly and with candour; and may be more defensive than they otherwise would. This could have a detrimental impact on the Inquiry’s ability to fulfil its terms of reference”. This passage unsurprisingly attracted considerable adverse comment, as was inevitable. Mr Kennedy readily acknowledged it was badly written. I make it plain that, notwithstanding their nerves, I expect all witnesses, doctors and nurses included, to tell the truth, to make every effort to assist the inquiry when giving evidence and to reflect thoughtfully on what happened. Candour and frankness should be a given. This extends to the witnesses for the corporate bodies, including the DHSC and NHSE.
35. Whilst I accept that knowing evidence is being broadcast live to the world may increase nervousness, I do not have a sufficient evidence base upon which I can rely to determine whether or not it would detrimentally affect the quality of the evidence given. Nor do I know whether a witness would be affected in the same way or differently knowing evidence is being transmitted live to certain individuals and may be broadcast at some stage. For those reasons, I leave that issue out of account in coming to my decision.

The need to avoid impeding the ongoing clinical responsibilities of any witnesses who still work in frontline NHS services

36. I would expect the inquiry team to give advance warning of hearing dates so that witnesses with clinical responsibilities can attend to give their evidence whilst keeping disruption to a minimum. I have already dealt with the need to achieve best evidence. There is nothing to add under this heading. Applications for special measures may be made and I will consider them in due course.

The need to avoid prejudicing criminal investigations or proceedings

37. All parties are aware of ongoing investigations and proceedings. The inquiry maintains a close liaison with Cheshire Police. There is no reason to think that this factor adds anything to the points made earlier under headings a-c.

CONCLUSION

38. I accept the submissions of Counsel to the Inquiry. As well as avoiding the problems arising from the live broadcast of evidence that I have described, the transmission of proceedings via live links reduces the risk of breaches of the Crown Court orders to the same level as hearing the proceedings in public. The links will be granted on application and on undertakings to all Core Participants and the media. The links would be permitted to rooms in the same building as the hearing room or to locations remote from the hearing venue.
39. Using links allows the transmission of proceedings to continue without delay, so that simultaneous reporting may take place. Control of the footage would remain with the inquiry (unlike worldwide streaming over which I would have no control).
40. I accept that, although not necessary to achieve open justice, this process would add to the quality of the participation by Core Participants. They can watch proceedings without being in the room. The proceedings can be recorded so they can watch at a time convenient to them. This is of particular importance to parents who are working or have caring responsibilities. It also makes it easier for the media to report fairly, accurately and in a timely fashion. In addition, there will be a live transcript in the hearing room. The transcript (redacted where necessary) will be uploaded to the inquiry website at the end of the day, or as soon as possible after that.
41. Mr Bunting KC made it plain on behalf of the media that he agreed with the suggestions made by Counsel to the Inquiry. It formed no part of the oral submissions of the media that there should be worldwide livestreaming, nor was it suggested that a failure to order this was in some way a derogation from open justice.
42. Mr Bunting KC asked that there should be a process developed so that decisions could be made about the broadcasting of clips from the hearings without interrupting the flow of the inquiry. I am content that such a process be developed. It should be designed to achieve swift decisions at minimal additional cost.
43. Counsel to the Inquiry also submitted that the use of mobile phones in the Hearing Room should not be permitted – so that they would not be used to take photographs or to record (via audio or video or both) any part of the hearing. They submitted that the media should be permitted to use laptops. I have reflected on that submission and taken account of the submissions about it from the parents and of the media.
44. I agree that those two groups may use mobile phones in the Hearing Room, as well as the lawyers for the Core Participants. Obviously, phone calls may not be made during hearings but I accept that the parents, who will not be sitting next to their lawyers, may need to message them and vice versa. I also accept that they will not seek to record proceedings or take photographs. As to the media, I accept that mobile phones are essential tools for reporters. I was assured that they would not seek to record proceedings or to take photographs and I shall make directions to that effect in respect of all attendees. I accept the submission that the public should not be permitted to use their mobile phones in the hearing room and I shall make a direction to that effect. I do that to protect the integrity of the hearings, and because it will be impossible to police the difference between harmless messaging and messaging that risks undermining any of the court orders.
45. I am satisfied that these arrangements will allow effective participation in and public scrutiny of these proceedings.

Thirlwall LJ
Chair
24 May 2024

Appendix 1

THIRLWALL INQUIRY PRELIMINARY HEARING – 16 MAY 2024

1. For the substantive hearings there will be a hearing room to which the public will have access (either in the room or via live link to another room in the same building).
2. The technology is available to allow:
   1. live links to venues controlled by the Inquiry which are remote from the hearing room (within the same building or elsewhere) to allow the public and press to attend the Inquiry without being in the hearing room.
   2. live links issued for remote viewing (e.g. from the offices of NHS and media organisations) in accordance with a simple application process, including undertakings. No recording or copying or onward transmission of a live link will be permitted without the express authorisation of the Inquiry.
   3. livestreaming online, worldwide.
3. No decisions have yet been taken as to whether some, or all, of the evidence should be transmitted by live link or broadcast via livestream. Any parents of the babies named on the indictment who give evidence are likely to be permitted to do so subject to special measures.
4. All hearings will be transcribed. Transcripts will be made available online, and will be uploaded as soon as possible after the close of proceedings on any given day.

Submissions

5. Written submissions are invited from CPs and media organisations in respect of the nature and scope of any transmission or broadcast of the substantive hearings.
6. It is directed:-
   1. that any such submissions be sent by email to the Solicitor to the Inquiry by no later than 4pm on 9 May 2024. Written submissions are not required but oral submissions at the Preliminary Hearing will not be permitted unless written submissions are received in accordance with this direction.
   2. that whilst the overall content of the submissions is a matter for counsel, the submissions must deal with the following factors:
      1. The importance of the Open Justice principle in the particular context of s18 of the Inquiries Act 2005;
      2. The need to avoid any risk of breaching orders of the Crown Court;
      3. The need for all witnesses to give their best evidence to the Inquiry;
      4. The need to avoid impeding the ongoing clinical responsibilities of any witnesses who still work in frontline NHS services; and
      5. The need to avoid prejudicing criminal investigations or proceedings.
      6. The practical effect of any suggestions made.
7. Special measures for those who require them will be available as described in the vulnerable witness protocol. There may be other circumstances in which particular measures need to be taken to achieve best evidence. This will be considered on a case-by-case basis nearer to the substantive hearings.

Thirlwall LJ, Chair
30 April 2024

ii. Media Broadcast Protocol

This ruling deals with paragraph 11 of a draft Media Broadcast Protocol.

Background

1. On 29 May 2024 I issued a ruling on the question whether hearings in this Inquiry should be livestreamed or whether I should permit live links. I had heard submissions at a preliminary hearing. I decided against livestreaming and in favour of the provision of live links to Core Participants and the accredited media. The transcript of the hearing is at link.¹ My ruling is on the Inquiry website at link.²
2. At the preliminary hearing the nine media organisations who were represented by Jude Bunting KC did not seek livestreaming nor did any other media representative. They were content with the provision of live links. In the course of her argument Rachel Langdale KC, Counsel to the Inquiry, submitted that were I to decide in favour of live links, I might consider the release to the media of clips for broadcasting. This was echoed in submissions made by Mr Bunting. At paragraph 42 of my ruling, I recorded his request “that there should be a process developed so that decisions could be made about the broadcasting of clips from the hearings without interrupting the flow of the Inquiry.” I agreed that such a process be developed, “designed to achieve swift decisions at minimal additional cost.”
3. The Inquiry legal team and representatives of the media have been in discussions about the development of a media broadcast protocol in respect of the broadcast of clips of the proceedings of the Inquiry by accredited media. I am grateful to all for the work that has been done. The draft protocol runs to 19 paragraphs with a short appendix. It has been seen by all Core Participants, none of whom has made any observations on it, save as I set out below.
4. The broadcasters accept that in the exceptional circumstances of this Inquiry (which they acknowledge is of profound importance) they will abide by the protocol, but they object to the inclusion of Paragraph 11 which they say should be deleted. It is upon that objection that I am asked to rule. I do so on the papers, having received written submissions from Mr Bunting on behalf of the broadcasters and from Kate Blackwell KC on behalf of four former senior managers whom she represents: Ian Harvey, Alison Kelly, Tony Chambers and Sue Hodkinson.
5. Paragraph 11 of the draft protocol reads –

   “In general, in respect of any given outlet or title operated by a media organisation, broadcasts of clips of witness evidence will be limited to no more than 5 minutes per day for any individual witness. This restriction can be varied or disapplied upon application to the Chair, and shall not apply if a witness confirms in writing their consent to broadcast of their evidence in full”

6. The broadcasters submit that, in their editorial assessment, some of the witnesses’ evidence in this Inquiry will require longer than five minutes of broadcast footage per day. They base their assessment on their experience of reporting on the criminal trial and on their reporting of other public inquiry hearings. They inform me that the BBC 24 hour news channel broadcast “long sections” of the evidence of Paula Vennells at the Post Office Horizon IT Inquiry, which is being livestreamed. Whilst long sections of evidence do not, on the face of it, come within the description of a clip, nothing turns on that. The point is that broadcasters may from time to time want to broadcast more than five minutes of the evidence of a witness on any one day.
7. Miss Blackwell points to the second part of paragraph 11 which allows for applications to vary or disapply the five minute limitation. I accept that there may be situations when a longer excerpt might be appropriate. The provision for an application to vary or disapply allows for such situations.
8. In my judgment there are at least three reasons which lead me to conclude that in allowing broadcasting I should maintain paragraph 11 of the protocol. First, it is imperative that the Inquiry hears from witnesses who are able to give best evidence. It is reasonable to assume, as a general proposition, that for a witness waiting to give evidence to the Inquiry, the prospect of the broadcast of a five minute clip of evidence is less intimidating than the prospect of broadcasts of unlimited and uncertain duration. Of course, the reality may be different in the light of the evidence given, but my concern is that the witnesses be reassured in advance so that they can give best evidence. That the assumption is reliable is borne out by Miss Blackwell’s assurance at paragraph 8 of her submissions that no applications for special measures have been made on behalf of any of the senior managers in the light of the contents of paragraph 11 of the protocol. This includes the possibility that the five minute limit may be waived. She reasonably adds that if paragraph 11 is removed in its entirety this position will have to be reviewed.
9. I do not accept the broadcasters’ proposition that a witness’ concerns about broadcasting would not justify special measures. That is a fact specific decision in each case.
10. I am satisfied that the five minute limitation will reassure witnesses and allow them more easily to engage with and give evidence to the Inquiry.
11. Second, the order for live links instead of livestreaming was based in part on the risk of breaches of the Crown Court orders. I am satisfied that the risk of breach is lower the fewer and shorter clips that are broadcast.
12. Third, as I said in the ruling, the Inquiry retains control of the footage (subject to the application of the protocol) which should give some reassurance to those who are concerned about conspiracy theorists and the use to which they may put broadcast footage.

Practicalities

13. The broadcasters accept that paragraph 11 permits an application to the Chair to disapply or vary the five minute limit but they say that repeat applications would be impractical. There is no basis for saying that at this stage. The process should be simple and straightforward and can be refined in the light of experience.
14. I reject the submission that removing paragraph 11 would allow swift decisions at minimal additional costs. That course would not give effect to paragraph 42 of my ruling.
15. Accordingly, paragraph 11 shall remain in the protocol.
16. This decision having been made on the papers it is open to the broadcasters to seek a hearing. It will be listed in London at the same time as any contested applications for special measures, 10.30am 6 August 2024.

Thirlwall LJ
Chair
28 July 2024

iii. Application to pause the Inquiry

1. The hearing of the evidence of the last witness in this case was listed for Monday, 24th February at 10 o’clock. On the late afternoon of Friday, 21st February, Ms Blackwell, her junior and her solicitor wrote to me on behalf of Mr Harvey, Ms Kelly, Mr Chambers and Ms Hodkinson seeking a pause to the Inquiry. They rely on section 17 of the Inquiries Act 2005. They wrote at the same time to the Secretary of State to seek a suspension under section 13 of the same Act.
2. It is necessary at this stage only to read the first paragraph of the letter, which reads as follows: “We formally write to ask you to exercise your duty under section 17(3) of the Inquiries Act 2005 and pause the current public inquiry proceedings pending the outcome of the Criminal Cases Review Commission’s consideration of an application made by Lucy Letby in respect of her criminal convictions for murdering seven babies and attempting to murder seven others between June 2015 and June 2016 at the Countess of Chester Hospital.” I turn then to the final line of the final page which reads, “the only reasonable course of action, albeit a regrettable one, is to pause proceedings until the appellate process has run its course.”
3. I arranged for the letter to be sent over that weekend to all Core Participants. I directed that the hearing on Monday the 24th would not be affected by the request and that where any Core Participant wished to make any submissions in respect of the request to pause, they should be added to closing submissions which were already listed for this week, beginning 17 March, in Liverpool. I extended the time for written submissions to accommodate the additional work required.
4. On the following Friday, 28th February, in the early evening Mr David Davis MP wrote to me also seeking a pause to the Inquiry.
5. This Monday morning, about half an hour before the hearing was due to start, I received a long letter from a firm of solicitors, Bhandal Law, who represent Ms Letby. The solicitors asked me to suspend the Inquiry, “to wait for the outcome of the review to take place”. That is a reference to the CCRC, the Criminal Cases Review Commission, to whom Ms Letby has made a preliminary application that her case should be referred back to the Court of Appeal Criminal Division.
6. The history of her convictions at two trials and the dismissal of her two applications for leave to appeal her convictions has been set out on earlier occasions and I do not repeat it. As matters stand, Lucy Letby is serving 15 whole life sentences for offences of murder and attempted murder.
7. I have approached the Inquiry on the basis that Lucy Letby is guilty of the crimes of which she has been convicted. That she is guilty is the consequence of the convictions under the law of this country. It is not for me in the discharge of my duties under the Inquiries Act 2005 to seek to explore alternative theories about the deaths of children, unless the Terms of Reference require me to, which they do not.
8. Requests to the Secretary of State for Health and the Secretary of State for Justice were sent on 30 July 2024 from a number of experts with a request that the Terms of Reference should be amended in the light of doubts about the convictions. The Secretary of State for Health replied refusing the request. Such an amendment would have led to this public inquiry being used as a vehicle for a collateral attack on the convictions, cutting across the criminal justice system, including the process for challenging convictions via the CCRC and ultimately the Court of Appeal Criminal Division.
9. On 24th September 2024, part way through the hearings of this Inquiry, I received an application from a firm of solicitors then representing Lucy Letby. They applied on her behalf for Core Participant status. I refused that application. My decision was not the subject of any legal challenge, and it will be uploaded to the website of this Inquiry later this week.
10. Until 21st February this year there was no suggestion by any of the Core Participants that this Inquiry should be paused or suspended, or the Terms of Reference changed. What seems to have prompted the letter of Friday, 21st February, was a press conference which took place on 4th February. This was, I believe, the second press conference which had been organised by Ms Letby’s team. The first took place just before Christmas. On 4th February it was announced by Ms Letby’s barrister that a preliminary application had been sent to the CCRC on 3rd February. Summaries were released of reports by a number of experts from across the world, across a range of disciplines. They had, I understand, been provided with medical records of the babies on the indictment. They had then carried out their own review of the records, at the end of which they concluded that there was no medical evidence of murder or deliberate harm. At the press conference, full reports were promised by the end February. It is now said that they will be provided to the CCRC this week.
11. In a statement on their website, in February, the CCRC say that they have received a preliminary application from lawyers for Lucy Letby. They say that it is not possible at this stage to determine how long it will take to review the application and note that a significant volume of complicated evidence was presented to the court during Letby’s trials. The CCRC say that they expect more submissions from Ms Letby’s team. They also say that they will not be commenting on their own progress. I was told by Miss Blackwell during the hearing that a commissioner has been allocated and the current legal team is to meet him or her soon.
12. A brief word about the medical records of the babies on the indictment and of their mothers. I do not doubt that such records are relevant to the application to the CCRC and have rightly been provided to them. They were relevant to this Inquiry and were rehearsed as necessary with advance notice to the parents and, of course, with their consent. It is apt, I think, to remind ourselves of the observation of Mr Baker KC yesterday when he said: “Whatever side of the debate people are on, people should remember that the dead and harmed are not public property to be dissected on television or on the internet.”
13. In the light of the reports which are described as “fresh evidence”, Ms Letby’s solicitors asked me to suspend the Inquiry under section 13 of the Inquiries Act 2005. This section of the Act applies not to me but to the Secretary of State. I assume a letter has by now been sent to him to that effect and I say no more about the solicitors’ letter sent on Monday morning.

The law

14. The power to suspend a public inquiry rests with the Secretary of State, here the Secretary of State for Health and Social Care. Section 13(1) provides that: “The Minister may at any time, by notice to the Inquiry Chair, suspend the Inquiry for such period as appears to the Minister to be necessary to allow for — (a) the completion of investigation into any of the matters to which the Inquiry relates, or (b) the determination of any civil or criminal proceedings arising from those matters.”
15. In considering the wording of section 13 in the Supreme Court, a case reported as In the matter of an application by JR222 for Judicial Review (Appellant) (Northern Ireland) Lord Stephens, Justice of the Supreme Court, made the following observations at paragraph 60 to 65:

    “(a) the purposes of a suspension were limited to those set out in subsections 1(a) and 1(b) of section 13.

    (b) the existence to suspend an Inquiry presupposes the ability to continue an Inquiry while criminal proceedings are ongoing.

    (c) the power to suspend is vested in the Minister who must consult the Chair of the inquiry before doing so.

    (d) the period of suspension is until the day specified in the notice or until further notice is given by the Minister.

    (e) if the Minister suspends an inquiry he must provide his reasons and lay a copy of the notice before the relevant Parliament or Assembly.”

16. Having considered two possible interpretations of section 13(1) and applying the ordinary principles of statutory interpretation as set out in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department, Lord Stephens concluded that: “The true interpretation is that section 13(1) naturally reads as one question which must be considered and answered as a whole. On this basis necessity applies to both the purposes in section 13(1)(a) and (b) to the period of suspension.” Ms Langdale submits that it follows that the threshold for suspension of an inquiry under section 13 is a high one.
17. In addition to the power to suspend the Inquiry, of course, as I was reminded by a number of counsel yesterday, it is the Secretary of State who has the power to set up the Inquiry, to set the Terms of Reference in consultation with the Chair, and each of them has pointed out to me that before exercising the power to suspend the Secretary of State must consult the Chair.
18. It is against that legal backdrop that the former executives seek to make their application under section 17 of the Inquiries Act, describing it as a duty which requires me to pause.
19. Section 17(1) provides that: “The procedure and conduct of the Inquiry are such as the Chair may direct.” And 17(3) that: “In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or to others).”
20. The DHSC, the Department of Health and Social Care, makes no submissions either on the law or the detail of the request. This is unsurprising, given that the Secretary of State has a role under section 13 of the Act, as I have identified.
21. NHS England make three points on the law.
22. First, that the power to suspend the Inquiry rests with the Secretary of State under section 13 of the 2005 Act, not with the Chair under section 17 of the 2005 Act.
23. Second, if the Secretary of State is considering exercising the power under section 13, he would be required to consult with the Chair.
24. Third, he submits that I may use the occasion of these submissions, i.e. the submissions being made by counsel for the Core Participants, to obtain the positions of the Core Participants in the Inquiry to inform any representations that I may seek to make to the Secretary of State in the event of a consultation with me about a request to suspend.
25. On the facts, NHS England adopts a neutral position.
26. The RCPCH make no submissions on this issue.
27. On behalf of the CQC, Ms Richards submits, at paragraph 92 of her submissions, that section 17 contains no express power to pause an inquiry, but, as I’ve set out above, provides that the procedure and conduct of an inquiry are as the chairman of the inquiry may direct, and that in making any decision the chairman must act with fairness and with regard also to the need to avoid any unnecessary costs. She says it may be arguable that section 17 empowers a Chair to “pause” an inquiry where it would be unfair to continue. For the purposes of this ruling, I shall proceed on the basis that it is at least arguable that I have that power.
28. Ms Richards, like Mr Beer on behalf of NHSE, then suggests that halting an inquiry is principally a matter for the Minister under section 13, that the Minister’s powers under section 13 are highly circumscribed and can only be exercised following consultation with the Chair where it is necessary for one of the statutory purposes to which I have referred. That a ministerial decision to suspend is subject to such a high bar suggests that a similar decision by an Inquiry Chair should be similarly constrained. Ms Langdale makes the same point on behalf of the Inquiry.
29. Ms Richards submits that the fact that parallel investigations are ongoing, does not, without more, require a Minister to suspend an inquiry and it follows, therefore, that the mere fact of parallel proceedings would not, without more, require the Chair to do so on grounds of fairness.
30. She goes on to say, assuming that section 17 does empower the Chair to pause the Inquiry, this would require the Chair to consider whether it would be fair to all the participants in the Inquiry to suspend it for an indefinite period pending a decision by the CCRC as to whether the case should be referred to the Court of Appeal in circumstances where, as things stand, there is a conviction and matters have proceeded no further than a reference to the CCRC.
31. Mr Kennedy, on behalf of the Countess of Chester Hospital, in his written document set out subsections 17(1) and (3) and submitted that:

    “the Chair may proceed to consider the evidence received and conclude the Inquiry in line with the section 17(3) duty.”

32. He made two observations:

    “(a) To pause the Inquiry pending the outcome of the CCRC application process and any further process that may subsequently be initiated would be to effectively suspend it for an indeterminate period. That period could be lengthy. Any pause therefore risks preventing the Inquiry from fulfilling its Terms of Reference in a timely manner. Those Terms of Reference were decided by the Secretary of State, and it can be in neither the public interest nor the interests of those involved in the Inquiry process for the fulfilment of those Terms to be frustrated for a long period.

    (b) Letby’s convictions result from a full and lengthy judicial process. Those convictions stand. Leave to appeal on the basis of new medical evidence has already been considered and refused. Whilst the Trust does not comment on the strength of the application made by Letby’s legal team to the CCRC, it observes that it cannot be fair, reasonable or proportionate to postpone the Inquiry based on the mere possibility that her case will be referred to the Court of Appeal. That possibility will always exist. Were her case in fact to be referred to the Court of Appeal by the CCRC on its merits, the Trust may wish to revisit its stance.”

33. On behalf of Family Group 2 and 3, Mr Baker submitted that the power to suspend, which is effectively, he says, what is being sought here, rests only with the Minister and not with the Chair.
34. Returning to the letter from Ms Blackwell, at page 2 she says:

    “Where there is a real possibility as appears to be the case here, that Ms Letby’s convictions may be referred by the CCRC to the Court of Appeal and there quashed, we submit that the public inquiry proceedings must be paused. To ignore the appellate proceedings which have now commenced would be wrong for the following reasons. Firstly, there is a real risk that you would be in breach of your duty to act fairly under section 17(3) of the Inquiries Act 2005 and, two, there is a real risk that you would be in breach of your duty to have regard to the need to avoid any unnecessary cost under section 17(3).”

35. One preliminary point in respect of that submission. There are, at the moment, no criminal proceedings afoot. An application to the CCRC does not begin appeal proceedings. That comes later, if there is a reference to the Court of Appeal Criminal Division. Everyone agrees that it is not for me to assess the application being put before the CCRC. I have seen some of the summary reports submitted, but I have not seen the application, nor would I expect to. At the same time, Ms Blackwell submits that the effect of the reports, which are in fact so far untested, means that there is a real possibility that the convictions will be referred to the CACD and there quashed.
36. Set against that assertion are the submissions of Mr Skelton, who points out there is nothing new in the reports and that the analysis is flawed, and those of Mr Baker who conducted a detailed forensic review of much of the medical evidence. I express no view on the merits of the application to the CCRC. It is clear that this will be a very lengthy process for the CCRC and, were a referral to take place, the Court of Appeal Criminal Division.
37. It is inevitable that the pause being sought is of a length which is entirely outside of my control, but it appears on the face of it to be a very lengthy one. This is rather more than an adjournment granted, for example, to allow the parties to deal with disclosure or to support a witness and so on, the sorts of pauses which are entirely routine in inquiries. This increasingly looks in effect like a suspension.
38. As I say, for the purpose of this request I will assume that I have the power to pause where fairness requires it, as Ms Richards suggests.
39. Turning, then, to the two limbs of the submission, it is convenient to deal first with costs.
40. I have to have regard to the need to avoid unnecessary costs, and that is something that I have had in my mind and in my actions since I was appointed to chair this Inquiry.
41. The Inquiry has completed its evidence well within the time estimated and, as a result, it is running at a lower cost than had been originally thought. What remains is the report writing and, in all likelihood, some warning letters in respect of potential criticisms. That will be followed, of course, by the costs of publication, but the main costs have already been incurred.
42. If the report is not written now but written at some point in the future, it is inevitable that the costs will be greater. Experience has shown us that the longer the time between the completion of a case, particularly one involving a great deal of evidence, and the judgment or ruling, the longer it takes to provide the judgment or ruling. It follows that there will be additional costs in the event of a pause.
43. In the meantime (i.e. during the pause), a slimmed down secretariat would be required while the Inquiry remains in being and in suspension or pause. Whether the same staff could be retained is rather doubtful, and so it may well be that it is necessary to set up a fresh team for warning letters and publication. All of that would add to and not reduce costs. I am quite satisfied, therefore, that, having regard to the need to avoid unnecessary costs, this is not a matter which supports the application for this pause.
44. That leaves the question of fairness.
45. I have set out what is required of me. There was no suggestion from any of the Core Participants at the time I opened the hearings that it was unfair to observe that the convictions stood, nor was it suggested that it was unfair to work on the basis of the convictions, notwithstanding what I then described as “noise”.
46. The process of the Inquiry has been conspicuously fair. Every Core Participant has been sent in advance an outline of the questions to be asked and the documents to be looked at, and no one has been taken by surprise by the documents. All counsel had the opportunity to ask questions of their clients and of other witnesses. Any requests to ask questions were agreed by Counsel to the Inquiry, and I was not required to adjudicate on a single application.
47. The Inquiry does not become unfair because there is a possibility, as is asserted, that all the convictions are unsafe.
48. It is important to repeat what I have said on a number of earlier occasions. I completely accept and have approached the Inquiry in this way; that it is essential to guard against hindsight when judging the actions of people eight, nine and ten years ago. That is not going to change once I move into the report writing stage.
49. As I have said before, it is not the actions of Lucy Letby that I am scrutinising, it is the actions of all those who were in the hospital and within the Terms of Reference whose actions I am reviewing, what they did at the time in the light of what they knew at the time, and in the light of what they should have known at the time.
50. There are already large numbers of concessions about what was not done that should have been done. Those significant concessions come from the organisations, the hospital, including the doctors, and the managers have made a number of concessions, including that they should have communicated better with parents and should have provided pastoral care for the consultants. But perhaps principal and most obvious among the concessions made by just about everyone is the acknowledgement that there was a total failure of safeguarding at every level, and that will not change. It is a matter which has been debated at some length in the course of the Inquiry and one that, it seems to me, inevitably will feature in any report.
51. There were some submissions that one type of witness was treated differently from other types of witness, doctors as opposed to managers. I am not going to make any observations about that issue in this ruling. It seems to me that it is appropriately dealt with in the course of a report when I am reviewing the whole of the evidence but not at this stage.
52. I remind myself of the submission made by a number of people that fairness to all the parties is required, not just to a single set of Core Participants. I am not satisfied that there is any unfairness in the current situation.
53. I am satisfied that the process has been fair.
54. At the very end of her submissions, Ms Blackwell suggested that I might consider a hybrid approach. This would be to publish the report in respect of Parts A and C but not Part B until the resolution of the criminal cases. I accept that from the perspective of her clients Part B is the most contentious and potentially difficult but the reason why Herculean efforts were made by everyone to be ready for Part B so it could be heard immediately after Part A and before Part C was because they flow one from the other. The experiences of the parents cannot be separated from the actions of the people in the hospital. Equally importantly, recommendations are bound to come out of my findings. I have already said as much. If Part B were omitted, there is a risk that recommendations lose their anchoring in the facts. It is a point well made that the impetus for implementation will be reduced in the absence of findings of fact.
55. Accordingly, for all the reasons that I have rehearsed during the course of this somewhat lengthy extempore judgment, the application is refused.
56. I should say that, of course, the question of the timing of the publication of the report is, as always, a matter for me and I will always keep that under review, as I would do in any other Inquiry.
57. That concludes my ruling.

Thirlwall LJ
Chair
19 March 2025

Footnotes

1. 1 https://thirlwall.public-inquiry.uk/wp-content/uploads/2024/09/Thirlwall-Inquiry_16-May-2024_Preliminary-Hearing.pdf

2. 2 https://thirlwall.public-inquiry.uk/wp-content/uploads/thirlwall-documents/Ruling-on-Livestreaming.pdf