England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12th July 2013

1. LADY JUSTICE HALLETT: Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to section 4 of the Mental Capacity Act 2005. The resident was Mr Thomas Milroy, an elderly man, suffering from Alzheimer's disease, osteoarthritis and hypertension. He was disorientated in time and place, he could not always recognise his children and his biological clock was confused. There was a note on his care plan to the effect that he was "a high risk faller." His condition was obviously declining.
2. On 25th February 2011 he was noted to be agitated. As a result, Ms Gayle Broadway, a lead carer at the home, asked another carer under her supervision, Glen Marsh, to put Mr Milroy to bed some 2 hours earlier than usual. This he purported to do. The appellant, Maxine Turbill, arrived on duty at 21.30. She was told by her co-appellant, Miss Broadway, that the victim had been agitated. Ms Turbill did not pass on that message to Kerry Richardson also on duty or check on him at all that night. Yet, she wrote in his notes that he had "slept well". This seems to have been a recurring theme in the notes of patients- where no-one reported a problem, a patient was recorded as "sleeping well".
3. At 8 o'clock on 26th February Jane Sutton came on duty and found Mr Milroy in his room in a state of collapse. There was no evidence his bed had been slept in. Mr Milroy was on the floor, partially dressed, semiconscious, partially hypothermic, he had soiled himself and he was in pain. His condition suggested that he had never been put to bed. He was taken off to hospital but fortunately he had suffered no significant or obvious injury.
4. The prosecution case was that each accused had a duty to Mr Milroy and each had wilfully breached that duty. Mr Walsh had failed to put the victim to bed properly or at all and no one had checked on him until the following morning. Hand-over briefings were inadequate and/or staff failed to check when informed that Mr Milroy had been agitated.
5. Ms Turbill denied responsibility for the relevant floor where the victim's room was located. She claimed she had no obligation to relay what Gayle Broadway had told her to anyone else. She relied upon Kerry Richardson to tell her of any difficulties and did not have to check every room.
6. Ms Broadway accepted that she had ultimate responsibility towards the victim and should have checked before the end of her shift whether Mr Milroy was safely in bed but insisted she was not guilty of wilful neglect. She relied upon Glen Walsh to do that which he had been instructed to do. He in turn claimed he had put Mr Milroy to bed albeit still partially clothed. He accepted he should have checked the room temperature. Kerry Richardson said she did not check Mr Milroy's room but claimed she had no reason to do so, and in any event it was not her responsibility.
7. Thus, it appears to have been common ground that somehow or other Mr Milroy had been neglected. The issues for the jury were whether each of the accused had a duty to Mr Milroy that night and whether their actions amounted to wilful neglect of him.
8. On 17th July 2011, in the Crown Court at Worcester before His Honour Judge Jukes QC, Ms Turbill and Ms Broadway, were convicted along with Glen Marsh of the ill- treatment of a person who lacks capacity. Kerry Richardson was acquitted. On 28th August 2012 they each received a short suspended sentence order suspended for 12 months and coupled with other requirements. Ms Broadway and Ms Turbill appeal against conviction with leave on one ground only, namely whether the judge's directions to the jury made sufficiently clear the elements of the offence of wilful neglect.
9. We have been referred by counsel to two decisions on the subject, one of the House of Lords in R v Sheppard [1981] AC 394, the other a decision of this court delivered on 17th May 2013 in R v Patel [2013] EWCA Crim 965.
10. In Sheppard the expression "wilful neglect" was considered in the context of an offence under the Children and Young Persons 1933. The majority of the House of Lords rejected the argument that the test of fault was objective. Lord Keith of Kinkel at page 418 C said this:

"I turn now to consider the meaning of the adverb 'wilfully' which governs and qualifies 'neglects' and all the other verbs in s 1(1).This is a word which ordinarily carries a pejorative sense. It is used here to be the mental element, which, in addition to the fact of neglect, must be proved in order to establish an offence under the subsection. The primary meaning of 'wilful' is 'deliberate'. So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle recklessness is to be equiparated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty."

Lord Diplock explained the mens rea as follows:

" The proper direction to be given to the jury on charge of wilful neglect under section 1 of the Children and Young Persons Act 1933 by failing to provide adequate medical aid, is that the jury must be satisfied (1) that the child did in did need medical aid at the time the parent is charged with failing to provide it (the actus reus) and (2) either that the parent was aware at the time the child's health might be at risk if it were not provided with medical aid, or that the parent's unawareness of this fact was due to his not caring whether the child's health was at risk or not (the mens rea).

11. In Patel the court considered the same offence as we have here. Jackson LJ gave the judgment of the court and at paragraph 42, observed:

" In our view, neglect is wilful if a nurse or medical practitioner knows that it is necessary to administer a piece of treatment and deliberately decides not to carry out that treatment, which is within their power but which they cannot face performing."

12. Mr Grice, for the Crown, sought to persuade us that the decision in Patel was very much restricted to its own facts, namely where the mens rea alleged stemmed from a deliberate and conscious decision not to administer treatment. Jackson LJ's remarks must be seen in that context. However, Mr Grice did not dispute that Sheppard and Patel both suggest that the test for wilfulness is subjective rather than objective. It was common ground that recklessness per se is not enough. Simply failing to do what a careful and competent practitioner would do is not enough. Mr Grice accepted that the term "wilfully" in section 44(2) should be given the meaning ascribed in R v Sheppard which he understood meant (i) deliberately refraining from acting; or (ii) refraining from acting because of not caring whether action was required or not. He sought to persuade us that the words "wilful neglect" did not carry with them any necessary appreciation of the consequences of the neglect or the risk of harm. In any event, given the circumstances of the alleged neglect here and the possible consequences the risks were obvious.
13. During the course of argument this morning we enquired of counsel what discussions there had been as to the judge's directions on the law. We were informed that there was "broad agreement" that the judge should direct the jury that they had to consider whether or not a duty of care existed; whether or not each accused had that duty in their mind, and whether or not they had failed in that duty because "they did not care less". Mr Grice was of the view that had the judge stuck to the agreed formula that would have been sufficient.

Mr Bermingham and Mr Owen did not appear to dissent from that proposition, but maintained that the judge did not adhere to the formula. Further, prompted by the single judge, they argued the judge failed to give the jury the necessary explicit and clear directions as to the subjective element of the offence. The result is that the jury may have been left with the impression that negligence equates to wilfulness.

They took us to a number of passages of the summing up highlighted by the single judge where it is said that the judge directed the jury in a confused or in an inadequate fashion. Before embarking upon a consideration of those passages, it is important to note, as Mr Grice invited us to do, that at the very beginning of the summing-up the judge directed the jury that "at the heart of this case lies the word wilful". However, he did not purport to define "wilful" or provide any assistance upon its meaning at that stage.

Thereafter, at page 3B he said:

"What they [the prosecution] have to prove in respect of any or all of these defendants is that the neglect was wilful neglect; that is to say, either that it was deliberate, that they or any of them left him there deliberately and didn't visit him when they knew they had a duty to do so, or - and you may think this is really the case, because it's not been suggested by the prosecution they deliberately left in him in his room, as might have been the case for instance if there had been some evidence that someone got angry with him and put him in his room to get him out of the way and just left him there. That isn't that case, is it? That's not what we're talking about, you may think here, here. The suggestion is that he was put in his room and then he was completely forgotten about, because no- one cared enough to see how he was. So you may think the prosecution's real case is not deliberate neglect of him, but that they failed to visit him, he was failed to be visited, out of a grossly careless lack of concern for such duty as any of them had, reflecting what the prosecution have called a couldn't care less attitude."

14. Counsel highlighted the two expressions "grossly careless lack of concern" and "couldn't care less attitude".
15. This passage was closely followed by the judge's direction "it is the state of mind of each defendant separately that you're looking at."
16. He continued:

"So you've got to look at the case of each defendant separately and decide, 'What was the state of mind and has the prosecution proved so that we're sure that it amounted to wilful neglect in the sense that that particular defendant was reckless of the welfare of Thomas Milroy that night?'

What you've got to be quite careful - I should say rather than 'quite careful' particularly careful - not to do is to come to the conclusion in this case, 'Plainly there was neglect of Thomas Milroy, plainly he should never have been left in his condition in the circumstances overnight; the institution itself ... therefore as a body, as an institution, neglected him; therefore, we find one of these defendants neglected him grossly that night.' That is not the way you should look at it. You've got to approach each defendant separately and ask yourselves, 'Are we sure in respect of the particular defendant that we're considering that he or she wilfully neglected Tom Milroy in the sense that he or she acted recklessly in their approach to the duty they had to care for him?' That, I would suggest, is really what is at the heart of this case, but we'll come back to that."

At page 13B he posed the following question:

"Has the prosecution proved, you will ask yourselves, the particular defendant either deliberately or recklessly neglected Thomas Milroy? Let us emphasise that which has been said already. It is not enough for the prosecution against a particular defendant merely to prove forgetfulness."

Then at page 14A:

"...in respect of that particular defendant does it reflect a reckless, a grossly careless, disregard of his being there and his need to be looked after? Or was it merely the inadvertence of people who had a great deal to do and who made mistakes in the circumstances?"

In dealing with the case against Walsh and each of the appellants, the judge repeatedly used the expression "reckless disregard" to describe what the prosecution had to prove.

At page 46E he said:

"Wilful neglect means either deliberate neglect - that has not been at the centre of the prosecution's case. Their case is that the neglect in this case was reckless neglect; that is to say, that the person in question knew he or she had a duty to Thomas Milroy and, for lack of concern, because he or she didn't really care sufficiently, failed to carry out that duty. That's what the case is all about."

17. At a convenient moment during the delivery of the summing-up counsel for Ms Richardson attempted to persuade the judge that the judge's repeated emphasis on the word "reckless" had failed sufficiently to encompass the subjective element of wilfulness and recklessness (as per G 2004 1AC 1034). However, counsel for her co-accused and for the prosecution did not support her and her request for a direction that the judge should direct the jury the prosecution had to prove on the part of each accused some awareness of the risk to Mr Milroy fell on deaf ears. The judge did not add to his directions.
18. Mr Grice submitted that even if the court felt that one or two of the passages cited were not as clear as they might be, the summing up must be considered as a whole and in the context of there having been four speeches from defence advocates before the jury retired. In that light, the directions were sufficient. Essentially, he maintained the judge did stick to the agreed formula and did direct the jury that what they had to consider was whether or not the accused had a "couldn't care less" attitude.
19. We disagree. Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. Parliament has decreed that neglect is not enough to constitute a criminal offence, even of a vulnerable patient like Mr Milroy. The neglect must be "wilful" and that means something more is required than a duty and what a reasonable person would regard as a reckless breach of that duty. In parts of the summing up that may be clear but in others it is not.
20. The judge has, unfortunately, used a variety of expressions. He has used the word "reckless" without defining it and without directing the jury it is not simply an objective test. He has used the words "careless" and "carelessness" and "grossly careless" as if they necessarily equate to a "couldn't care less" attitude. They do not; even "gross carelessness" would not, of itself, be sufficient to amount to wilful neglect.
21. We fear the cumulative effect may have been to water down the directions, however much the judge may have focussed the jury's attention on the state of mind of each accused. This has caused us to have real doubts as to whether the jury would have understood the essential elements of the offence.
22. With respect to all concerned, this case cried out for succinct written directions, agreed in advance, by the advocates and the judge tailored to the individual case against each accused. Had such directions been agreed, a very considerable amount of precious time and resources and no doubt considerable anxiety might have been avoided.
23. For all those reasons, we have no option, as it seems to us, but to quash the convictions. In so doing, we wish to record our horror at the undoubted neglect of Mr Milroy. We understand that steps have been taken by the home to remedy any possible systemic failures to ensure this kind of incident cannot happen again. We truly hope so.
24. MR GRICE: My Lady, I am instructed to apply for a retrial. There is an important matter of public interest in my submission, which arises from care workers being held accountable for their care or wilful neglect of vulnerable individuals who lack capacity.
25. LADY JUSTICE HALLETT: Mr Bermingham, Mr Owen?
26. MR BERMINGHAM: I would simply oppose that. The matter is now old and stale. The convictions were a year ago. The suspension period for the suspended sentences runs out in a matter of weeks. All other matters of sentence, as far as my client is concerned, have been dealt with. I can see the appeal has been allowed but I do believe that this is not one of those cases where the matter should go to retrial.
27. LADY JUSTICE HALLETT: What do you say about the public interest of the responsibility of the carer to patients as vulnerable as Mr Milroy?
28. MR BERMINGHAM: There is of course a public interest in any case that concerns a care home. I accept that. But the lesson that I understand was with regard to the home itself have been well learned and the procedures now put in place that the deficiency that were there at the time, ie where you had a shortage of staff, so you had over covering of other duties etc have been taken care of --
29. LADY JUSTICE HALLETT: There were systemic failings by the sounds of it.
30. MR BERMINGHAM: Yes, there were.
31. LADY JUSTICE HALLETT: There was a shortage of staff, a failure to direct staff as to how they had to carry out their duty.
32. MR BERMINGHAM: The were not the written guidelines that they should be and one will expect in saying: this is your duty. These are the things that you cover. These are the things that you should do. Those were not there. There was no - I suppose is best way of putting it - organisational control and monitoring of that control. But I understand all that has been rectified.
33. LADY JUSTICE HALLETT: What about if Mr Grice were to refer to the fact that one of the consequences of the conviction was that the accused or the appellant, your lay client would be unable to work in the profession or permanently unable to work in it.
34. MR BERMINGHAM: That was one of the grounds which we would have considered in due course after this appeal because she has spent - I cannot remember the exact number of years off the top of my head and I am not attended today, so I do not have an instructing solicitor with me - I seem to remember it was 20 years or something like that of experience without complaint, without fault. Can I assist further?
35. LADY JUSTICE HALLETT: You would argue that the Crown do not have here somebody who plainly needs to be subject to a disqualification.
36. MR BERMINGHAM: That is my argument.
37. LADY JUSTICE HALLETT: Mr Owen?
38. MR OWEN: The position is largely the same as far as Miss Broadway is concerned. The only thing I would add is this perhaps. Both of these individuals are currently prohibited from working. The difficulties that arose arose when they were working in a system which, it has openly been accepted by the Crown, was subject to systemic failures. Those have now been addressed. It seems it is difficult to argue that it will be appropriate for them to work somewhere where there are systemic failures but of course those failures should be in place. They have been addressed and I am not suggesting it is likely they will return to a (inaudible) knowing the nature of this case, which suggests that an attitude or approach to the manner in which they have worked, which had proper provisions been in place, proper monitoring been in place would have occurred. This is not a matter where they have deliberately done an act. It was never put in that way. It was that they had fallen short in their duty for whatever reason. I think on that basis it is hard to say there is public interest in maintaining (inaudible) prevented from working. Properly supervised, in the proper environment it seems to me they are appropriate workers, people who are able to conduct themselves in an appropriate manner. Given that background it seems to me the public interest really has been satisfied and met by the fact that the systemic failures have been addressed, the fact that the pressure that these particular individuals have felt and quite properly noted by the court during the year and half or more, since the start of these proceedings, would do as much really would constitute as much in terms of a learning curve for them, as anything else. It is simply the question of really of whether it is necessary to protect the public at this stage. I do not see that it is. On that basis there is no public interest in retrying these two defendants on these particular facts when these are circumstances which could not arise again. As I say the issues have now been addressed and identified.
39. LADY JUSTICE HALLETT: Thank you Mr Owen. Mr Grice, I am just looking at the provisions of section 7, page 1163 of Archbold: "Where the Court of Appeal allow an appeal they may order an appellant to be retried."
40. MR GRICE: My Lady, can I refer to Archbold just pass 7-112. It is on the same page 7, section 7. It is two paragraphs down: "The decision whether to order a retrial requires an exercise of judgment involving consideration of the public interest and the legitimate interest of the defendant." In my submission it is in the public interest because the point I have already made about the nature of the case, the vulnerability of Mr Milroy and the positions that these defendants had enjoyed by way of employment, the disqualification for working with vulnerable adults is an important issue for the defendant and for the public at large. In my submission, a jury should have the benefit of hearing evidence and being properly directed that the defendants have the public and the defendants have the verdicts that follow from that.
41. LADY JUSTICE HALLETT: By the time this matter is tried if we were to grant a retrial it will be nearly two-and-a-half, nearly 3 years since the offence was allegedly committed. Two and a bit years. Whether it gets on this Autumn or not. Presumably Mr Walsh might also wish to argue the same point.
42. MR GRICE: My Lady, that has occurred to me.
43. LADY JUSTICE HALLETT: Which means the trial will be delayed even more because he has to be sorted out. It may be you have different arguments about safety.
44. MR GRICE: The difficulty with Mr Walsh is of course the judge gave the same directions in his case.
45. LADY JUSTICE HALLETT: He did, he used reckless disregard, did he not?
46. MR JUSTICE OPENSHAW: The appeal hearing is not going to go very long. It is going to be a few months into the process, is it not, because even if he puts in a notice of appeal before the end of term, it is not going to come on until the Autumn, is it?
47. MR GRICE: I am just wondering if Mr Walsh gives notice of appeal. Obviously given the ruling in this matter, I would not oppose that appeal.
48. MR JUSTICE OPENSHAW: It all takes time.
49. LADY JUSTICE HALLETT: The interest of the public, you say -- Mr Owen and Mr Bermingham have essentially argued: there were failings here but they were rather more systemic failings in the home and those have been rectified. On any view it is going to be at least two-and-a-half, if not 3 years before these people can be retried.
50. MR JUSTICE OPENSHAW: And they have served effectively the suspended part of the sentence.
51. MR GRICE: I accept that. As I say, it is the disqualification that follows with the conviction.
52. LADY JUSTICE HALLETT: That is really where you say the public interest comes? You have highlighted the failings and they have been remedied. So the question really is whether it in the public interest for people who have committed failings of this kind, in that context, should be retried; is that what really it comes to?
53. MR GRICE: My Lady, can I make this point also that both Mr Turbill and Miss Broadway have made, the Crown say, admissions during their interviews whereby strong interpretations were they were accepting responsibility for their part in the failings.
54. LADY JUSTICE HALLETT: Miss Broadway says: "Throw the book at me" or something. That may mean simply that she felt responsible; that the system let him down and the buck stopped with her. It is not necessarily an admission of a serious criminal offence.
55. MR JUSTICE OPENSHAW: Is there some regulatory body that supervises people who work in care homes? I do not know the answer to that.
56. LADY JUSTICE HALLETT: I was listening on the radio the other day that suggested there was not. There ought to be plainly.
57. MR GRICE: I do not know the answer.
58. MR JUSTICE OPENSHAW: Your point, which I completely understand, is that you need to launch a criminal prosecution in order to get the disqualification. I was wondering if there a regulatory or supervisory body.
59. MR OWEN: I may be able to assist, only entirely anecdotally because it happens my brother is a care worker and he tells me that the rules have changed. It has been announced, I believe in the last few days, indeed new legislation is coming in but there currently is not, there will be training requirements and --
60. LADY JUSTICE HALLETT: That is what I heard on the radio I think.
61. MR OWEN: The reason I am aware of it is because it affects him. My understanding is and it is entirely anecdotal, is that it will ultimately extend to care homes within and without the NHS and both entirely qualified indeed and some if, without being disrespectful, the lower end of the scale in terms of seniority for nursing staff who provide some nursing care. It is in line with the new regulation that will allow nursing duties to be conducted by less qualified people and overseen by qualified nurses.
62. LADY JUSTICE HALLETT: At the moment there is nothing to allow, if we did not order a retrial, Miss Broadway and Miss Turbill to be assessed by any kind of professional body as to whether they were fit to work with vulnerable people in the light of what happened on this sad night?
63. MR OWEN: The responsibility at the moment has been formalised, it remains the same. The homes to ensure there are not systemic failures and all their staff are appropriately monitored and able to deal with duties.
64. LADY JUSTICE HALLETT: What about the position with their employers? They are no longer employed obviously by the home because of the disqualification.
65. MR BERMINGHAM: They were fired. The reality is in the area it is well known. Even if they are acquitted now, the prospects of getting work with that sort of track record is pretty slim.
(Short Adjournment)
66. LADY JUSTICE HALLETT: Mr Grice, in the light of your submissions we feel we have no alternative but to accept, on the material before us, that you are correct in your assertion that it is in the public interest to order a retrial but we will say this. We do expect - I do not know what your position is within ... you are within the Crown Prosecution Service?
67. MR GRICE: My Lady I am.
68. LADY JUSTICE HALLETT: You have a Chief Crown Prosecutor?
69. MR GRICE: My Lady, yes.
70. LADY JUSTICE HALLETT: We direct that you consult your Chief Crown Prosecutor about the public interest of a re-trial. You will have an opportunity to assess all the information that we really cannot go in to this morning, eg the changes that have been made, the people who may or may not have been at fault and of course the added factor of the delay with Mr Walsh. So please consult with your Chief Crown Prosecutor as to whether in the light of all that, you wish to proceed.
71. MR GRICE: My Lady certainly.
72. LADY JUSTICE HALLETT: In the meantime we give you your direction that there should be a retrial. If the Registrar could pass me the words (Same Handed).
73. As we have already ordered the appeal will be allowed. It is clear the counts on which the conviction is quashed. Those same counts will be the counts on which the appellants will be retried. We order that a fresh indictment be served. What do we need to do about bail?
74. MR GRICE: There is no bail position.
75. LADY JUSTICE HALLETT: No bail position. We do not need to do anything?
76. MR GRICE: I ask your Ladyship not to make any direction with regards to bail. Miss Turbill is not here but Mrs Broadway is here. But I think a direction that the case simply be relisted in the next 2 weeks before the Crown Court.
77. MR JUSTICE OPENSHAW: We do need to do something about bail, even if it is only unconditional bail.
78. MR GRICE: I have no objection to unconditional bail.
79. LADY JUSTICE HALLETT: Unconditional bail for both. The retrial will be in the Midland circuit?
80. MR GRICE: My Lady, yes.
81. LADY JUSTICE HALLETT: Presiders to select the time and venue. If we order that a fresh indictment be served in the next two weeks that gives you time to consult. You are content with 2 weeks, are you?
82. MR GRICE: I do suggest 2 weeks, yes.
83. MR JUSTICE OPENSHAW: This is often the mistakes made. You list it on the tenth day then there is a power cut or a strike or something and you do not get there and then you are in trouble.
84. LADY JUSTICE HALLETT: Four weeks we will say, Mr Grice. That also gives you time to consult with your Chief Crown Prosecutor and to make sure you are in full possession of all facts. I have dealt with the location of the retrial on the Midlands circuit as directed by the presiders. Reporting restrictions - any necessity? By the sounds of it this case has got a lot of publicity locally anyway.
85. MR GRICE: It had a lot of publicity 12 months ago at the time. No reporting restrictions were imposed on that occasion.
86. LADY JUSTICE HALLETT: Is there anything in our judgment that is going to potentially impact upon a retrial? We have said the judge has the directions wrong. If they are retried, it is going have to be acknowledged it is a retrial any way, is it not, Mr Owen, Mr Bermingham? Can you see any necessity for any kind of restrictions?
87. MR OWEN: I do not think anything has been said.
88. LADY JUSTICE HALLETT: We have not said anything prejudicial to the appellants, we have just said the directions were wrong.
89. MR OWEN: I do not believe...
90. LADY JUSTICE HALLETT: In which case there will be no reporting restrictions.
91. MR BERMINGHAM: Can I clarify one matter. Is it that the fresh indictment is to be served within 4 weeks. Then no doubt be listed at Worcester which was the court it came from.
92. LADY JUSTICE HALLETT: That is going to depend on Mr Walsh as well. Mr Grice, could we impose upon you please to ensure that he is notified of the ....
93. MR GRICE: My Lady certainly. I will speak to his counsel also and invite him to do so.
94. LADY JUSTICE HALLETT: We are very grateful. Thank you very much.