What the direct appeal was
The direct appeal process, under the Criminal Appeal Act 1968, is the ordinary-course appellate route following conviction. A defendant has the right to apply for leave to appeal. The Court of Appeal can grant or refuse leave. If leave is granted, the appeal proceeds on the specified grounds.
In the Letby case, the defence team (then led by Ben Myers KC) applied for leave to appeal on grounds that had been developed on the evidence then available. The Court of Appeal refused leave in May 2024 on those specific grounds.
What the May 2024 refusal did and did not decide
The May 2024 refusal decided that the specific grounds advanced did not meet the leave-to-appeal threshold. It did not decide that the convictions are safe for all time, on all possible evidence that might subsequently emerge. That would be outside the Court of Appeal’s function on a direct-appeal application.
Critically, the May 2024 refusal was decided on the evidence then before the Court. That evidence did not include the Shoo Lee Panel report (February 2025), the Joint Insulin Report (May 2025), the independent paediatric-pathology re-readings (October 2025), the Thirlwall Inquiry evidence (through 2024–2026), the clinical-psychology expert reports on self-blame notes, the Fenton Bayesian analysis, the Heneghan EBM critique, or the three-executives arrest (July 2025).
What the CCRC route is
The Criminal Cases Review Commission, under section 13 of the Criminal Appeal Act 1995, can refer a conviction to the Court of Appeal where there is a “real possibility” the Court of Appeal would not uphold it. The CCRC threshold is lower than proof-beyond-reasonable-doubt; it is lower than the direct-appeal leave threshold in specific ways.
Critically, the CCRC can refer on the basis of new evidence that did not exist at the time of the direct appeal. The section 13 route exists specifically to allow review where subsequent developments have changed the evidential picture.
How the CCRC route is different from direct appeal
- Threshold. Direct-appeal leave requires substantial grounds on the existing record. CCRC referral requires only real possibility that the Court of Appeal would not uphold the conviction on the new evidence.
- Evidence base. Direct appeal is limited to evidence then available. CCRC referral can rest on evidence that emerged after the direct appeal.
- Timescale. Direct appeals are time-limited; CCRC applications can be made at any time after conviction.
- Scope. Direct appeals address specific grounds; CCRC referrals can address the overall safety of the conviction.
Why the Anthony precedent matters
Donna Anthony’s first appeal was dismissed in 2000. The CCRC subsequently referred her case on the basis of the 2003 Clark and Cannings acquittals. The Court of Appeal quashed her conviction in April 2005. The procedural pattern is directly analogous to Letby: first appeal refused, CCRC application on subsequent framework-shifting expert evidence, Court of Appeal review under the real- possibility test.
In Anthony’s case the CCRC threshold was met and the Court of Appeal ultimately acquitted. See our Anthony parallel analysis.
The Mark McDonald KC strategy
The defence team’s transition from Ben Myers KC (trial and direct appeal) to Mark McDonald KC (CCRC application) is the procedural correlate of the route shift. McDonald is a specialist in post-conviction review and CCRC applications. His October 2025 application is not an attempt to re-litigate the 2022–2023 trial; it is a different proceeding, under a different statutory framework, on a different evidence base.
Why the “appeal was refused” argument is misleading
Public commentary that dismisses the conviction-safety question by citing the May 2024 refusal is misreading the procedural architecture. The May 2024 refusal does not foreclose the CCRC route; on the Anthony precedent it does not even weaken it; and on the evidence shifts since, the CCRC route is substantially stronger than the direct-appeal route ever was.
The correct reading is: the direct-appeal route was tried on one set of evidence and failed. The CCRC route is now being tried on a materially different set of evidence. These are separate proceedings with separate questions.