Norris, R v [2009] EWCA Crim 2697

[2009] EWCA Crim 2697

Case No 200801704 C3

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE Crown Court at Newcastle Upon Tyne

MR JUSTICE GRIFFITH WILLIAMS

T20057640

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/12/2009

Before

LORD JUSTICE AIKENS

MR JUSTICE FIELD

HHJ STEPHENS QC

Between

RRespondent

COLIN NORRISAppellant

Mr William Clegg QC and Mr Jeffrey Samuels QC for Appellant

Robert Smith QC and Mr Paul Greaney for Respondent

Hearing Hearing date : 9 th November 2009

Judgment

Lord Justice Aikens :

[1]On 3 March 2008 in the Crown Court at Newcastle upon Tyne, after a trial lasting five months before Griffith Williams J and a jury, Colin Norris was convicted of the murder of four elderly hospital patients and the attempted murder of another in the space of 6 months in two hospitals in Leeds in 2002. On 4 March 2008 Griffith Williams J sentenced Colin Norris to life imprisonment in respect of the four murder charges. The judge set the minimum term to be served at 30 years, less 166 days spent in custody on remand. In respect of the attempted murder count, the judge imposed a sentence of imprisonment for public protection, and he set a minimum term of 20 years. The judge ordered that that sentence should run concurrently with the term of life imprisonment.

[2]Colin Norris applied for leave to appeal against conviction. His application was referred to the full court by Grigson J. There have been two directions hearings before the Vice President of the Court of Appeal Criminal Division. The second of these was held on 15 June 2009.

[3]Various possible grounds of appeal against conviction had been canvassed in the past. On 13 August 2009, counsel now instructed by Colin Norris, that is William Clegg QC and Jeffrey Samuels QC, lodged perfected grounds of appeal against conviction. These grounds raised three issues. They are as follows:

“1. The learned judge failed adequately to direct the jury on the question of the cross-admissibility of the evidence of the separate deaths on the question of whether the deaths were proved to be as a result of the exogenous administration of insulin as opposed to a rare but recognised phenomenon of naturally occurring hypoglycaemia. 2. The learned judge failed adequate to direct the jury on the question of the cross-admissibility of evidence on the issue of identity. 3. The combined failures on grounds 1 and 2 failed to address the single most important issue in the trial, namely how the cross-admissibility of evidence could support the different counts. The failure adequately to direct the jury on this issue was fundamental and renders the applicant’s conviction unsafe. It is respectfully submitted that the assistance given to the learned judge before the summing up was, with the advantage of hindsight, inadequate and failed to address the question of bad character following the admission of evidence under section 101(1) (a) of the Criminal Justice Act 2003. ”

[4]Having considered the papers in this case, we announced at the outset of the hearing on 9 December 2009 that the court granted leave to appeal.

The facts

[5]The appellant obtained a degree in nursing at Dundee University and qualified as a nurse in October 2001. In October 2001 he had taken up a post in ward 36 in the Leeds General Infirmary. In September 2002 he transferred to ward 23 at St James’ Hospital, Leeds. He was then 26.

[6]Ward 36 and ward 23 were orthopaedic wards. Many of the patients were elderly females, who had been admitted for surgery to deal with bones that had been broken following an accident. The most common injuries seen on those wards were hip fractures.

[7]The prosecution case at the trial was that the appellant had deliberately injected five elderly women with either insulin or another anti-diabetic agent of the sulfonylurea class. The prosecution alleged that in the case of four women, Ethel Hall, Doris Ludlam, Bridget Bourke and Irene Crookes, the injection of insulin or other anti-diabetic agent had led to brain damage caused by hypoglycaemia and the brain damage was either the cause of their deaths or a significant contributory cause of their deaths.

[8]In the case of the fifth lady, Vera Wilby, the prosecution case was that the appellant had administered her insulin or some other anti-diabetic drug and this had induced a hypoglycaemic state bordering on coma. However, Vera Wilby survived the coma and died eight months later of unrelated natural causes. The prosecution case was that the appellant administered the insulin or anti-diabetic drug with an intent to kill Vera Wilby. Hence the charge, in that case, of attempted murder.

[9]Hypoglycaemia is a condition which occurs when an excess of insulin causes the blood glucose concentration to fall below 2.5 millimoles per 1 litre of blood in the body. If the blood glucose concentration falls below that level it affects proper brain activity. If hypoglycaemia is prolonged and serious, it can cause brain damage, coma and death. Hypoglycaemia is a condition usually found in diabetics when an excess of insulin causes the fall in blood glucose concentration. In people suffering from diabetes, the effect of this fall is not usually so serious. That is because they already have raised glucose levels and are alerted to physiological changes, but symptoms such as blurred vision, seizures and even coma may result. The condition can be treated quickly by an ingestion of glucose and insulin combined.

[10]Insulin and small c-peptides are produced naturally by the pancreas. Insulin will control naturally the blood glucose levels. Diabetes mellitus is the disease caused by an inability of the pancreas to produce sufficient insulin and c-peptides. Patients suffering from diabetes mellitus require the injection of pharmaceutical insulin. This is usually short acting insulin (“Actrapid insulin”), which is a clear and colourless solution. It is usually injected subcutaneously in the region of the stomach, upper arm, thigh or buttocks.

[11]None of the five elderly, female victims had any previous clinical history of diabetes. Each victim had been admitted to hospital (or in the case of Doris Ludlam had had to remain in hospital) because she had suffered a hip fracture requiring surgery. None of the victims suffered significant complications following surgery, although all of them had been in poor health both before and after surgery. In the case of each victim, none had been prescribed anti- diabetic drugs at any stage. However, each was, in her own way, a difficult patient because she suffered from dementia or confusion and the consequences of advanced age.

[12]The prosecution case was that severe hypoglycaemia in non-diabetics was a very rare occurrence. It was suggested that to have five such cases, where four led to the death of the patient, was quite extraordinary. Part of the prosecution case was that the similar patterns in each case made the five cases mutually supportive.

[13]The first case to cause concern and which led to investigations was that of Ethel Hall. She had fallen at her home and fractured her right hip and was admitted to ward 36 of Leeds General Infirmary on 11 November 2002. She was then 86. She underwent an operation to repair the fracture of her hip on 14 November 2002. Although she showed signs of mental confusion both before and after surgery, she made reasonably good progress with her physical recovery from the surgery itself.

[14]On 20 November 2002 at about 0500 hours Ethel Hall was found to be in an unresponsive state in her bed. She was in a hypoglycaemic coma. She did not recover from that coma before her death three weeks later. An analysis of her blood samples showed a very high level of insulin and an undetectable level of c-peptide. It was common ground at the trial that, if the accuracy of the blood tests could not be attacked, then those findings led inevitably to the conclusion that Ethel Hall had been deliberately injected with a massive non therapeutic dose of insulin. A full forensic post mortem was carried out and it was concluded that all natural causes for hypoglycaemia could be ruled out.

[15]Records showed that there should have been two vials of Actrapid insulin in the fridge on ward 36 on the evening of 18 November 2002. However there were none in the fridge at 0600 hours on 20 November 2002. The records could not explain their use in the meantime. The inference was drawn that somebody had used the insulin to inject Ethel Hall and it must have been somebody on the nightshift of 19/20 November 2002. There was evidence that the appellant, who was on duty on that nightshift, had stated to another member of staff that Ethel Hall did not look right and that “she might go off tonight at about 0515”, meaning she might die.

[16]We can outline the facts relating to the other four victims more briefly.

[17]Vera Wilby was admitted to ward 36 in May 2002, for surgical repair of a fracture to her left hip. She was aged 90 and was mentally confused and incontinent. On 17 May 2002, at about 2230 hours she was found by nursing staff to be in a hypoglycaemic state bordering on coma. The appellant had administered her a dose of morphine at about 1930 hours. There was no record that Mrs Wilby was in pain or required that medication. She was not a diabetic. The prosecution case was that the appellant had administered the morphine to render Mrs Wilby drowsy so that he could administer anti diabetes drugs which sent her into a hypoglycaemic state and that he did this before 2100 hours when his shift ended. Mrs Wilby survived a coma and died eight months later of other causes. Her body was cremated.

[18]Doris Ludlam was admitted to Leeds General Infirmary on 14 April 2002, suffering from heart failure. She was aged 80. She was discharged on 10May 2002 but readmitted the following day. She was agitated and confused and considered by staff to be a difficult and demanding patient. On 12 June 2002 she suffered a fall and fractured her left hip. She was transferred to ward 36 for surgery. She was difficult and awkward and also incontinent. She removed her catheter on a number of occasions.

[19]On the night of 24/25June 2002 the appellant was on duty on ward 36. The prosecution case was that he had administered to Mrs Ludlam an unnecessary dose of morphine at 0235 hours on 25 June, using an “old” prescription that had been given by a doctor at the time of her hip fracture. The prosecution case was that the appellant had given Mrs Ludlam double the dose of morphine prescribed to render her drowsy so that he could inject her with the insulin or an anti-diabetes drug which would reduce her blood sugar and induce a hypoglycaemic state.

[20]The appellant went off duty at 0745 hours. At 0810 hours Mrs Ludlam was found to be in a hypoglycaemic coma. Mrs Ludlam died on 27 June 2002. Her death was attributed to natural causes, ie. stroke and cardiac failure. Her body was cremated.

[21]Bridget Bourke was admitted to ward 36 of the Leeds General Infirmary on 16 July 2002 after falling and fracturing her right hip. She was aged 88. She was on the ward at the same time as Vera Wilby and Doris Ludlam. Mrs Bourke was frail and confused and spoke incoherently. She had had a history of strokes and old bleeding from a subdural haemorrhage. She was incontinent.

[22]On 1 July she was diagnosed with a serious bacterial infection, which was life threatening. On 16 July 2002 she deteriorated further. On 20 July 2002 she fell out of bed and appeared unaware of her surroundings.

[23]At 2045 hours on 20July, the appellant started his nightshift. He attended to Mrs Bourke in bed at 2200 hours and at midnight. At 0310 hours on 21 July, the appellant claimed to have discovered Mrs Bourke slumped in bed and unrousable. She had, in fact, entered a hypoglycaemic coma from which she never recovered. She died in the early hours of 22 July 2002. Her cause of death was certified as a stroke. Her body was buried but exhumed fourteen months later and a post mortem was carried out.

[24]On 10October 2002 Irene Crookes fell and fractured her left hip. She was admitted to ward 23 of St James’ Hospital. The appellant was, by that time, working on that ward. Mrs Crookes underwent surgery to repair the fracture. She was unwell after surgery. Chronic obstructive pulmonary disease was diagnosed.

[25]The appellant worked the nightshift on ward 23 on 17 October 2002. At 2200 hours he recorded observations on Mrs Crookes and administered two of her prescribed drugs. (She refused several others). At 0700 hours on 18October 2002, the appellant recorded that he had taken Mrs Crookes’ pulse, blood pressure and checked her oxygen saturation levels. He recorded that none of these gave cause for concern. He went off duty shortly thereafter.

[26]Later in the morning of 18 October 2002 Mrs Crookes was seen by another member of the medical staff. He saw no reason to order a medical review that evening.

[27]The appellant came back on duty at 2045 hours on 18 October 2002. At 2200 hours he gave Mrs Crookes her night-time medication. At 0230 hours on 19October 2002, again he made various checks on her vital functions and recorded that none gave cause for undue concern. At 0600 hours, the appellant noted that Mrs Crookes appeared to have slept well most of the night and that her temperature was coming down,

[28]Between 0545 and 0600 hours, the appellant reported to a colleague, charge nurse Clarke, that he had just found Mrs Crookes totally unresponsive. Medical staff found that Mrs Crookes was deeply unconscious and in a hypoglycaemic coma. She died on Sunday 20 October 2002. Her death was attributed to natural causes. Initially the cause was thought to be a stroke but it was later certified as respiratory failure due to chronic obstructive pulmonary disease. Her body was cremated.

[29]The prosecution also relied on evidence concerning the appellant’s conduct. It had been noted that he was keen to learn about diabetes and insulin issues and that he was also aware of the different types of pharmaceutical insulin. As part of his nurses’ training, the appellant would have administered insulin subcutaneously under supervision. He had also been taught about the effects of insulin and had been lectured on the case of Sister McTavish who, in the late 1970s, had deliberately injected elderly patients with insulin.

[30]There was other evidence about the appellant’s attitude towards elderly patients that the prosecution had originally decided it would not put before the jury. It decided to do so once it was clear that the defence case was that the appellant was sympathetic towards elderly patients. First, there was evidence that he had expressed a dislike of working with elderly patients. Secondly, there was evidence that, as a ward nurse, he had demonstrated an insensitive and rude attitude towards elderly patients in his care. Thirdly, there was evidence that the appellant had shown himself to be arrogant and manipulative and over confident and not receptive to advice. Fourthly, whilst he was working on ward 36 he had prepared insulin for a diabetic patient.

[31]The appellant’s case was that he had done nothing to the patients other than given them proper nursing care. He denied administering any substance which could have caused a hypoglycaemic coma in any of the cases. He denied doing anything to any of the victims which was either unlawful or malicious.

The trial

[32]At the trial the defence ran two positive cases. First, it was suggested that another nurse, JS, could have been the person who had administered the insulin to the patients. He was a qualified nurse and had knowledge about the effects of insulin and sulphonylureas. Not only had he access to insulin but also, because he was an insulin dependent diabetic himself, he kept his own emergency supplies of Actrapid insulin and syringes at home. He had no alibi for four of the five critical times. With respect to the case of Doris Ludlam, JS’s evidence was that he had been working a nightshift at St James’ Hospital when Mrs Ludlam suffered her critical incident in the Leeds General Infirmary. However he did have a one hour break during his shift when, it was suggested by the defence, he would have had ample time to travel the two mile distance between the two hospitals, commit the offence and return to his own hospital.

[33]Secondly, the defence relied on the case of Mrs Belinda Dominique (called “BD” at the trial). She had been a patient at the Leeds General Infirmary in July 2001, when she had had surgery to repair a hip fracture. Mrs Dominique was then 73 and was not diabetic. Whilst recovering from surgery she suffered a heart attack. The attack caused her blood sugar levels to rise and an insulin sliding scale was set up to bring it down. Although she was given a small amount of insulin, she went into a profound hypoglycaemic coma some hours after the last dose of insulin was administered. The hypoglycaemia recurred on three occasions.

[34]The importance of the case of Belinda Dominique was that she suffered the unexplained hypoglycaemia at a time when the appellant was still a student nurse in Scotland. Because she was not a diabetic the occurrence of hypoglycaemia was very rare. Therefore two possibilities had to be considered both in her case and in relation to all the others apart from Mrs Hall. The first was that there had been another malicious administrator of insulin or other anti diabetic drugs to Mrs Dominique; in which case it could not have been done by the appellant. The second was that this demonstrated that hypoglycaemia in non – diabetic patients was not as rare as the medical experts appeared to be saying.

Scientific evidence at the trial

[35]There was much scientific evidence at the trial. The prosecution called 15 experts. The defence called 5 experts. The disciplines of the experts were those of consultant physician, geriatrician, pharmacologist, chemist, endocrinologist, cardiologist, pathologist, neurologist, radiologist, neuro-radiologist , neuro-pathologist and biochemist.

[36]In summing up, the trial judge gave the jury a list of all the experts and brief summaries of their standing and expertise. He also identified, in respect of each if the victims, the areas of dispute in the expert evidence.

[37]In his summing up, the judge dealt with the evidence of each expert both generally and in relation to each of the victims. There is no criticism of the judge’s directions on expert evidence generally. Nor is there any criticism of his summaries of the evidence of particular experts. We would wish to say, with respect, that the judge’s summaries of the expert evidence show a masterly grip of the detail and the overall thrust of its effect.

[38]Three possibly natural explanations for the hypoglycaemia of the victims were canvassed in the expert evidence. It is unnecessary to go into any details. Effectively, the evidence of both the prosecution and defence experts, taken together was that it was most likely that the hypoglycaemia of all five victims had been caused by an administration of insulin or anti diabetic drugs. Alternative natural explanations were improbable but, in varying degrees, could not be entirely dismissed.

[39]Evidence of two of the experts is particularly relevant to the issues that arise on this appeal. First, evidence given by Professor Ferner, a consultant physician and pharmacologist, who gave evidence in respect of all five victims. When he was cross examined by Mr Harbage QC for the defence, about alternative causes of hypoglycaemia, he said that they could not be excluded with absolute certainty. But he also said that severe spontaneous hypoglycaemia causing brain damage is sufficiently rare that to see five cases of it is “extraordinary”: summing up page 246 lines 15 – 18. In re-examination he said that he had seen none of the possible alternative causes in a career of 29 years. He added (in the words of the summing up at page 246 lines 21 – 24:

“….to see two would be extraordinary, to see five is outside the bounds of possibility. He added to that the time scale and the fact that all five cases came from the same National Health Service Trust”

. Dr David Cohen, a consultant physician specialising in geriatric medicine since 1991, was called by the defence. In cross – examination by Mr Smith QC for the Crown, he agreed that in his 27 years of experience he had never come across a cluster of cases of hypoglycaemia like this one and he agreed it was extraordinary to find five cases: summing up page 247 lines 1 – 4.

[40]The other expert to be noted particularly is Dr Kroker, a consultant physician and ortho-geriatrician who had specialised in the recovery and medical complications of elderly patients after orthopaedic surgery. He had, over the years, monitored a total of 800 cases of elderly patients who had undergone hip fracture repair surgery. He therefore had a good profile of the types of problem that they were likely to encounter postoperatively. They were, collectively, a very vulnerable patient group. The majority faced heart problems or serious infections. He had never seen a single case of serious hypoglycaemia in a patient who was not on some anti – diabetic treatment – either insulin or sulphonylureas. Dr Kroker examined the details of all five cases and found six common factors. The most important one for present purposes was that, some 4 to 12 days after the hip repair operation, each had developed severe hypoglycaemia without warning and the hypoglycaemia resulted in a coma: summing up page 251 lines 9 – 12.

[41]He concluded that the features in each case fitted no known medical syndrome. His conclusion was that “…the only explanation that I can give is that these ladies were given insulin or possibly sulphonylureas”: summing up page 253 lines 18 – 20.

The summing up

[42]The judge prepared draft written directions on the law for the consideration of counsel before they began their final speeches. There was discussion between the judge and counsel on the contents of the directions of law on three occasions before the judge began his summing up: Friday, 15 February 2008, Monday, 18 February and Thursday, 21 February 2008, which was the day when the summing up began. The discussion was by reference to the draft written directions that the judge had prepared.

[43]We note two points in particular that arise out of the discussion on 18 February 2002. the first is at page 6 of the transcript for that day. In the draft directions then being considered the judge had stated that the jury should start by considering the two counts concerning Ethel Hall, counts 8 and 9. Mr Harbage QC told the judge that he would be submitting that it might be better to deal with things in chronological order. The judge agreed to redraft the written note to the effect that the Crown invited the jury to consider the case of Ethel Hall first, the defence wished them to deal with the cases chronologically, but it was a matter for the jury to decide.

[44]Mr Harbage then moved on to what he said he would “loosely call the similar fact of point and how much support is to be gained or not from the Ethel Hall count in relation to the others”. Mr Harbage emphasised the importance that the defence placed on the case of Mrs Dominique. He said that that case could, potentially, have a “profound affect on how one views the whole picture or pattern”. He submitted that there ought to be some mention of her at that point in the written directions.

The judge replied by explaining the scheme of the summing up:

[45]transcript page 7, line 17 – 24. He said: “…… The jury will be invited by me to consider the evidence of the security at the two hospitals, the evidence of Mr JS [the other male nurse] and the evidence of [Mrs Dominique]. And they will be directed that if having considered that evidence they cannot rule out the possibility that there was someone else, then that is an end to the case so that I will only be considering the evidence relating to the patients once that hurdle as it were has been crossed”.

[46]Mr Harbage then re-emphasised that the issues concerning Mrs Dominique ought to be “flagged up” at that point. Mr Smith QC appearing for the prosecution at the trial, as he does on this appeal, saw “the force in the defence point in that regard” so that to keep a proper balance there should be reference to those matters at that stage. The discussion then moved on to other issues.

[47]So far as we can see, there was no further discussion concerning the directions that the judge should give the jury generally about the effect of evidence in one case on the others or the effect of any conclusions the jury arrived at concerning the cause of Ethel Hall’s hypoglycaemic coma on the other cases.

[48]The judge gave each member of the jury written “Legal Directions” to the jury, the judge set out his directions on how the judge should approach their consideration of each case. He also set out a “route to verdicts” in the case of Mrs Hall, Mrs Ludlam, Mrs Bourke and Mrs Crookes and, separately in the case of Mrs Wilby, who had survived the hypoglycaemic coma.

[49]At an early stage of his oral summing up, the judge stated (page 7, lines 11-19) that the prosecution case was that the five individual cases were mutually supportive because of “similar patterns” in each case. These are then identified. At page 16, lines 11-20, the judge identified the two fundamental issues that the jury had to consider in the case of each victim. He stated:

“Fundamental to a conviction in the cases of each victim is proof that the victim suffered hypoglycaemia as a consequence of being injected with insulin, or from the administration of sulphonylureas. So, if you cannot reject in a patient’s case for an explanation of natural causes for the hypoglycaemia, you will acquit the defendant of the charge or charges relevant to that patient. But if that is proved you will then consider whether it was the defendant who injected the insulin or administered the sulphonylureas or whether it could have been someone else.”

[50]The judge reminded the jury of evidence that the appellant did not like the elderly and was hostile to them. He said that if the jury concluded that was the case then it could be used by them “in deciding in an individual case whether it was the defendant and not someone else who had administered insulin or sulphonylureas”: page 17 lines 6 – 9. But if the jury was not sure that it was the appellant who had administered the anti – diabetes drugs then they must acquit him. The judge pointed out that it was not suggested that the injection of insulin or administration of sulphonylureas was accidental or there was some lawful reason for such action.

The judge then gave directions on causation:

[51]page 18. He said, at the start of that passage that the directions which followed were all based upon the premise that the jury were sure that the appellant was responsible for “…the exogenous administration of either insulin or sulphonylureas to the patient whose case you are considering”: page 18 lines 4 – 7. He noted that it was accepted that Mrs Hall died as a consequence of hypoglycaemia. However in the cases of Mrs Ludlam, Bourke and Crookes, there was an issue as to whether the hypoglycaemia, which they admittedly suffered, was the cause of that lady’s death or a significant contribution to her death.

[52]Having given directions on causation, the judge then turned to directions on intention: page 19, line 19.

[53]The judge gave directions on the alternative counts concerning all the victims apart from Ms Wilby. He then gave directions on the issues that should be considered in relation to Mrs Wilby.

[54]The judge then set out his directions on the jury’s “route to verdicts” in the cases of Mrs Hall, Mrs Ludlam, Mrs Bourke and Mrs Crookes: page 22, line 17. He then set out his directions on the jury’s route to verdict in the case of Mrs Wilby: page 23, line 15. The judge said that it was a matter for the jury whether they decided to follow his routes to verdict. He stated at page 24, lines 5 – 8, that the jury must consider each case separately and each count separately.

[55]The judge then turned to the specific case of Mrs Hall and the possible affect of various conclusions by the jury in relation to her case on the cases of the other victims. There had been an issue about whether tests done on her blood were reliable and whether her hypoglycaemia was the result of insulin auto immune syndrome. The judge said that if the jury rejected the defence submissions on both those issues, then it would follow that Mrs Hall’s hypoglycaemia must have been the consequence of an injection of insulin. He directed that the jury then had to consider whether someone other than the defendant might have injected Mrs Hall. If they did, then as the judge put it “the prosecution submitted that the evidence in her case points conclusively to her killer being the defendant”: page 25, line 5-6.

[56]There are then, for the purpose of this appeal, some key passages in the summing up. First the judge set out the prosecution submission at page 25, lines 7-15. He said:

“….The Prosecution say that the circumstances of the treatment of Vera Wilby, Doris Ludlam, Bridget Bourke and Irene Crooks between May and October 2002 point in each case to the conclusion that they too were injected with insulin or that sulphonylureas were administered to them. They submit that the circumstances in each of those cases so closely resemble those which lead to the death of Mrs. Hall that the only conclusion must be that they were all either injected or had sulphonylureas administered to them by the same person, and that person they submitted was the Defendant.….”

[57]The judge then told the jury that it was a matter for them how they approached the Indictment. He reminded them that the prosecution invited them to consider counts 8 and 9 first (the counts concerning Mrs Hall), “because they submit that if you are sure that the defendant injected Mrs Hall with insulin that will be a conclusion which could be relevant to your consideration of the evidence relevant to the other counts”. However he said that the defence invited the jury to consider the charges of the indictment in chronological order. The judge said he would remind the jury of the evidence relating to Mrs Hall first because “…that is how the case has proceeded and because it seems to me that your conclusions in respect of Mrs Hall are likely to have a bearing on your conclusions on the other cases, but I repeat it is a matter for you how you approach the Indictments.”: page 26, lines 3-7.

The judge then said:

“……Whichever approach you decide to take bear in mind that if you are not sure the Defendant killed or attempted to kill Mrs. Hall the evidence relating to Mrs. Hall will have no relevance or value in your consideration of the other Prosecution evidence in the case, unless your conclusions in Mrs. Hall’s case undermine also the prosecution evidence in any one or more of the other cases. However if you are sure that he injected Mrs. Hall with insulin you are entitled to consider whether this circumstances of Mrs. Hall’s death and the circumstances of the death of the patient whose case you are considering are sufficiently similar for you to conclude the same person must have been responsible for both deaths, or in Mrs. Wilby’s case her attempted murder. If you decide that insulin or sulphonylureas were administered to any one or more of the other ladies and there is a realistic possibility that the similarities might be a matter of acceptable coincidence so that the insulin or sulphonylureas may have been administered by another, the evidence of what happened to that other lady or the other ladies is of no relevance and must be ignored. I repeat my earlier direction that you must consider the cases separately. If you are sure that the Defendant was the person who administered the insulin to Mrs. Hall you must not jump to the conclusions that he administered the insulin or sulphonylureas to one or more of the others. Rather you must concentrate on the evidence relevant to each case, decide whether there are such similarities as make the evidence in Mrs. Hall’s case relevant to the case you are considering and reach separate verdicts.…..”

[58]The judge then considered the prosecution case that Mrs Hall, Mrs Wilby and Mrs Ludlam had been given some opiate sedation. It was the prosecution’s case that this was done prior to the administration of insulin by the appellant. At page 28, line 19, the judge directed the jury as follows: “…….Considering the case of Mrs. Hall first, if you conclude that she had been given opiates by the Defendant you may use that evidence when considering the cases of Mrs. Wilby and Mrs Ludlam. If there are similarities between Mrs Hall’s case and one or other of the cases of Mrs. Wilby and Mrs. Ludlam then you may use any similarity when deciding whether the cases you are considering has been proved. Although I emphasise again that you must not jump to the conclusions but rather concentrate on the evidence relevant to each case and reach separate verdicts.”.

[59]The judge analysed and summarised for the jury the disputes between the medical experts in relation to each of the five victims at page 38 line 4 to page 39 line 16.

[60]When the judge summarised the evidence in relation to each victim other than Mrs Hall (which he dealt with first), he reiterated the fundamental issues that the jury had to decide. These were: what was the cause of the hypoglycaemia and, if it was non – natural and because of the administration of insulin or other anti – diabetic drugs, was the appellant the perpetrator. See pages 297 – 8 (Mrs Wilby); pages 332 - 333 (Mrs Ludlam); page 407 (Mrs Bourke) and page 442 (Mrs Crooks).

The appellant’s arguments and the respondent’s riposte

[61]Mr Clegg QC, on behalf of the appellant, accepted that the appellant was the only person to have been in a position to have injected all five victims, because he was the only person to have been on duty at the relevant time in all five cases. He accepted that it must follow that if the hypoglycaemia of all five victims was the result of malicious injection, as opposed to the manifestation of a rare but recognised naturally occurring phenomenon in non diabetic people, then if only one person injected all five victims, it must, in practice, have been the appellant. Mr Clegg also accepted that it was not a sensible submission to postulate two or more people maliciously injecting the five victims between them.

[62]However, Mr Clegg submitted that the corollary must follow: namely, that if the hypoglycaemia was the result of natural causes in one or more case, then the appellant could no longer be the sole common denominator. That meant, he submitted, that the jury had to be warned specifically that if they considered that the hypoglycaemia in one victim might be the result of natural causes (ie. other than a deliberate administration of insulin or sulphonylureas), then there was no common denominator. He submitted that the jury had to be warned specifically that, in those circumstances, they could not use a conclusion that the appellant had administered insulin/anti – diabetic drugs in one case as an aid to deciding who the perpetrator was in other cases.

[63]Mr Clegg accepted the general proposition that evidence in relation to one count was relevant and probative in relation to another on two crucial issues. First he accepted that evidence on one count was relevant and probative in another to prove that the deaths or some of them were not the result of a rare medical phenomenon, i.e. naturally occurring hypoglycaemia in a non diabetic patient. He submits that this issue did not involve any potential question concerning the appellant’s “bad character” and the “bad character” provisions in Chapter 1 of Part II of the Criminal Justice Act 2003 (“the 2003 Act”). Mr Clegg further accepted that if the jury rejected the defence submission that the cause of the hypoglycaemia in the case of one or more of the victims was a rare medical phenomenon occurring naturally, then it followed that the hypoglycaemia was the result of a deliberate action by a human agent. The jury then had to move on to consider the issue of who administered the insulin or sulphonylureas. Mr Clegg accepted that evidence of identity in relation to one count was relevant and probative in relation to another on this issue. He submitted (and we accept) that this raises the question of what “bad character” directions the judge needed to give the jury in relation to this issue.

[64]Mr Clegg submitted that in each case other than that of Mrs Hall, the medical evidence was that the probability of the hypoglycaemia occurring naturally was low. However, he says that it was accepted that in each of the four cases the hypoglycaemia could possibly have been the result of natural phenomena, which, although rare, were recognised by the medical profession. He accepted that Professor Ferner had given the evidence that we have already outlined.

[65]Mr Clegg points out, correctly, that statistically speaking the evidence of Professor Ferner would not alter the odds of any one individual case being a naturally occurring phenomenon. He submitted that this evidence of frequency by Professor Ferner was being used illegitimately to defeat the defence submission that each case must be examined individually and in each case it was possibly that the causes of the hypoglycaemia were natural. Mr Clegg submits that, given the prosecution submission that evidence in one case could be used in another to defeat the suggestion that the causes of hypoglycaemia in all cases except Mrs Hall were natural, and given the defence submission that the jury must examine each case separately to see whether there hypoglycaemia was the result of natural causes, it was imperative that the judge give a specific direction to the jury on how to deal with this issue. He submits that the judge failed to do this. He submits that the jury should have been warned that what he described as the “Lady Bracknell” approach of Professor Ferner was wrong and that the number of incidents did not make the probability of any one being from natural causes any different than if that case of hypoglycaemia had stood alone.

[66]Mr Clegg also criticises the judge for failing to give the jury any assistance on how they should approach the three other cases (other than that of Mrs Hall) if the jury concluded that there was a possibility that one case of hypoglycaemia was the result of naturally occurring phenomena.

[67]On the issue of identity of the perpetrator, Mr Clegg submits that the judge failed to give a sufficiently clear warning on how it could use a conclusion that the appellant was the perpetrator in one case when considering the other cases. He submitted that the judge should have given a much more pointed direction on how a conclusion that the appellant was the perpetrator in one case could assist the jury in deciding whether the appellant was the perpetrator in the other cases. He referred us to a number of cases in this court on “bad character” and “cross – admissibility” of evidence where there are several counts concerning similar offences and it is alleged that the defendant was the perpetrator in each case. These included R v DM

[2008] EWCA Crim 1544

[2009] 1 Cr App R 10

, and R v Freeman

[2008] EWCA Crim 1863

[2009] 1 Cr App R 11

[68]Mr Smith QC, for the Crown, reminded the court that, at the trial, the defence had advanced several different and conflicting cases. One was that the hypoglycaemia in all five victims, including Mrs Hall, could be attributed to non – malicious causes. (In her case it was suggested that the cause was Auto-Immune Syndrome and that the blood tests analyses were not reliable). One of the reasons for adducing the evidence of Professor Ferner and Dr Kroker on the rarity of cases of naturally occurring hypoglycaemia was to demonstrate that, because such a phenomenon was so rare, it would be extraordinary that all five cases, in two hospitals in close proximity in a short period, were naturally occurring hypoglycaemia. It was not suggested at the trial that the jury could use the evidence of Professor Kerner and Dr Kroker to show that all five cases must have been the result of malicious administration.

[69]Mr Smith also reminded us of another key aspect of the medical evidence, which was that in all five cases, once the hypoglycaemia had been discovered, they were given substantial doses of dextrose intravenously to counter the hypoglycaemia. All the medical experts stated that, except in the case of hypoglycaemia which was caused by an insulinoma tumour (in the pancreas), a substantial dose of dextrose ought to have remedied the hypoglycaemia very quickly. It did not in any of the cases. It is that which led Professor Tattersall, called for the defence, to conclude that there was no reasonable explanation for the hypoglycaemia that the five victims suffered other than that they were poisoned: summing up page 8 lines 3 – 8.

[70]On the directions given by the judge, Mr Smith submitted that the direction given by the judge at pages 26 to 27 (set out above) was concerned solely with the second of the two principal issues that the jury had to consider, ie. the identity of the perpetrator. It was given on the premise that the jury had already made two conclusions: first, that in all five cases the cause of the hypoglycaemia was non – natural and, secondly, that the appellant had injected Mrs Hall.

[71]He submitted that the direction of the judge given at page 27 line 11 to page 28 line 9 (quoted above) was concerned with a different and narrower topic. This was: how the jury could use a conclusion that Mrs Hall had been given opiates by the appellant to sedate her (and thus make the administration of intravenous insulin or other anti – diabetic drug more easy) in relation to the cases of Mrs Wilby and Mrs Ludlam? The prosecution case was that they too had been sedated by the appellant in preparation for the administration of insulin or other anti – diabetic drug. The judge’s directions here, Mr Smith submitted, were dealing with the identity of the administrator of the opiate sedative in the latter two cases, which could assist the jury in deciding on the identity of the administrator of the insulin or anti – diabetic drug in those cases.

[72]Mr Smith also drew our attention to facts which demonstrated the strength of the prosecution’s case that all five victims had been deliberately administered insulin or an anti – diabetic drug and that it was the appellant who had done so. He pointed in particular, first, to the weight of the medical evidence called by both the prosecution and the defence which was that the cause of the hypoglycaemia in all cases had been a deliberate administration of insulin or other diabetic drug. At the highest, other causes were only “possibilities”. Secondly, he underlined the fact that the appellant was on duty in three cases when it was discovered that they had hypoglycaemia. In the other two he had just gone off duty. Thirdly, the appellant was the “common denominator”; the only member of the nursing staff to have been responsible for caring for all five victims. Fourthly, it was clear that opiates had been given to Mrs Wilby and Mrs Ludlam unnecessarily and without justification. The prescriptions used were out of date. Fifthly, the statements of the appellant to colleagues on the night that Mrs Hall died, that she would die that night, were damning. Lastly, there was strong evidence that the appellant had an antipathy to old female patients. The prosecution had indicated at the PCMH that it would not lead that evidence, provided that the appellant did not try and establish a positive good character. However, when there was cross examination to that effect, leave was sought to lead the evidence pursuant to section 101(1)(f) of the Criminal Justice Act 2003: (“bad character” evidence to correct a false impression given by a defendant). Discussion: The first ground of appeal.

[73]The first ground of appeal concerns the directions that the judge gave on the “cross admissibility” of evidence concerning the cause of the hypoglycaemia in each of the five victims.

[74]We note that the judge identified the two fundamental issues that the jury had to decide at page 16 of his summing up, which we have quoted above. That direction formed part of the written directions which he gave the jury, so that they had those with them at all times when they had retired to consider their verdicts. We are satisfied that they would have had them in the forefront of their minds. The judge also reiterated the necessity for the jury to consider those two fundamental issues when he summarised the evidence in relation to each of the five victims, as we have noted above. We are quite satisfied that those directions were correct and based on a correct analysis of what the jury had to decide. It is clear that the judge was careful, both at the outset of his summing up and when summarising the evidence in relation to each victim, to emphasise to the jury that it had to reach separate conclusions in relation to each victim on the question of the cause of the hypoglycaemia. The judge said that the jury had to decide whether they rejected the possibility that the hypoglycaemia was the result, in the case of each victim, of natural causes: page 16 lines 11 – 17.

[75]Did the judge give a sufficiently pointed direction to the jury on how they could use a conclusion in one case that the cause of the hypoglycaemia was non – natural when considering other cases? It is clear, in our view that the judge neither explicitly nor implicitly directed the jury that if they found that in one case the hypoglycaemia was the result of non – natural causes they could use that as supportive of such a conclusion in another case. We are confident that the judge’s directions at page 26 lines 14 – 19 and page 28 lines 1 – 9, to which we have already referred, could not be read or understood in that sense by the jury.

[76]Was there a danger that the jury might use the evidence of Professor Ferner and Dr Kroker on the extreme unlikelihood of five cases of naturally occurring hypoglycaemia (in so short a time in two nearby hospitals) as supporting a conclusion that the cause of the hypoglycaemia in each of the five cases must therefore have been non – natural? Would such a line of reasoning have been wrong and should the judge have made a more specific warning against it?

[77]Clearly it cannot follow, either as a matter of logic or probability, that because it would be “extraordinary” to have five cases of hypoglycaemia resulting from natural causes in so small an area and so short a space of time, therefore it is evidence to demonstrate that it is either certain or more likely that all of the five cases were the result of non – natural causes. Such a line of reasoning would be wrong in terms of legal analysis and, we suspect, must also wrong in terms of scientific or probability analysis. It was not the conclusion that Professor Ferner or Dr Kroker was suggesting by their evidence. We are satisfied that each was simply indicating that, based on their experience, it would be quite extraordinary to have five cases of naturally occurring hypoglycaemia in the circumstances postulated by the defence.

[78]The judge might have given a direction that warned the jury against the line of false reasoning set out in the paragraph above. He did not specifically do so, but approached the matter in another way and, we think, in a way that was more likely to ensure the jury did not take such a line of false reasoning. He reiterated, time and again, that the jury must decide, separately in each case, whether the jury could exclude natural causes for the hypoglycaemia. Only if they could were they to go on and consider the issue of who was the administrator of the insulin or anti – diabetic drugs. In our view, the judge was wise to do this and not to put the possibility of the forbidden line of thinking into the minds of the jury at all. If, as we must assume they did, the jury dutifully followed the judge’s directions on the issue of proof of the cause of hypoglycaemia in each case, then they could not have considered the particular evidence of Professor Ferner and Dr Kroker we have highlighted as supporting a conclusion that it therefore followed that in all five cases the cause of the hypoglycaemia must have been non – natural.

[79]Thus we conclude that the judge’s directions that the judge gave on the “cross admissibility” of evidence concerning the cause of the hypoglycaemia in each of the five victims cannot validly be criticised. The first ground of appeal is rejected.

Discussion: the second ground of appeal

[80]The judge was very careful to emphasise that, in each case, the jury must decide the cause of hypoglycaemia issue first, before turning to the issue of identity of the perpetrator. The judge gave an express direction, at page 26 lines 14 to 19, that only if the jury concluded that the appellant had injected Mrs Hall could they consider whether that circumstance of Mrs Hall’s death and the circumstances of the death of the other patient they were considering were sufficiently similar to conclude that the same person must have been responsible for both deaths. Therefore, the judge instructed the jury that they had to conclude that they were certain that the appellant had committed an unlawful act - (administering the insulin or other anti – diabetic drug without any lawful reason) - before considering whether they could use that conclusion to decide who administered the insulin/sulphonylureas in another case.

[81]In terms of how this issue fits into the current statutory regime on “bad character” evidence, we think that the position can be analysed in the following way.(1) a conclusion by the jury that the appellant had unlawfully administered insulin to Mrs Hall must mean that, in relation to Mrs Hall, the appellant had committed an act of “misconduct” within the meaning given to it in section 112 of the 2003 Act. That action would have been an offence under one or more provisions of the Offences Against the Person Act 1861, at the least.

(2) Such “misconduct” would not have been “to do with the facts” of the other offences of which the appellant was accused, viz. the murder of three others and the attempted murder of Mrs Wilby, so is not within section 98(a) of the 2003 Act. Nor does it fall within section 98(b).

(3) Such “misconduct” is relevant to an important matter in issue between the appellant and the prosecution, in relation to the other offences of which he was charged: see section 101(1)(d) of the 2003 Act. The important issue is the identity of the perpetrator of unlawfully administered insulin/other anti- diabetic drugs.

(4) The evidence is not relevant to a “propensity” of the appellant to commit offences of the kind charged (section 103(1)(a) of the 2003 Act). Rather, it is relevant because proof that the appellant did unlawfully administer drugs to Mrs Hall is of probative value in establishing whether he was the administrator of insulin/anti – diabetic drugs in the other four cases. (Compare R v DM

[2008] EWCA Crim 1544

[2009] 1 Cr App R 10

at para 24, per Moses LJ; R v Wallace

[2008] EWCA Crim 1863

[2009] 1 Cr App R 11

at paras 19 – 20, per Latham V-P). It was, in short, relevant to proof of the identity of the perpetrator in each case.

(5) The evidence of the appellant’s “bad character” in relation to Mrs Hall may be strong circumstantial evidence that the other offences were committed by the same person: Wallace at paragraph 19.

(6) In the cases since the 2003 Act, this court has not set any test (such as had been adumbrated by Lord Mackay of Clashfern LC under the old law in DPP v P

[1991] 2 AC 447

at 460E) to decide when this type of “bad character” evidence can be used as evidence to prove the identity of the perpetrator of a similar offence of which he is charged.

(7) But, we think, before the conclusion that the appellant had administered the insulin to Mrs Hall could be probative in relation to the other similar offences of which the appellant was charged, the jury would have to be satisfied that the circumstances of the other case that they were considering were sufficiently similar to make it so.

(8) Therefore, the jury would need to be directed carefully as to the basis on which they could use a conclusion that the appellant had administered insulin/another anti – diabetic drug to Mrs Hall when considering the other cases.

[82]It was accepted by both sides at the hearing before us that the question of the “cross – admissibility” of a conclusion by the jury that the appellant had administered the insulin/other anti – diabetic drug to Mrs Hall on the other offences was not raised at any stage in the trial. The prosecution did not apply to admit the evidence as “bad character” evidence and the defence did not try to sever the indictment. The evidence was therefore adduced by agreement between all the parties according to section 101(1)(a) of the 2003 Act.

[83]Nor was there any discussion before the judge gave his summing up on the particular topic of how he should direct the jury in the use of such a conclusion. We must emphasise that we do not criticise either counsel or the judge for this; we are just recording the fact.

[84]Are the judge’s directions on the use the jury could make of a conclusion that the appellant had unlawfully administered the insulin to Mrs Hall open to criticism? We are quite sure that they are not. First, the judge reminded the jury of how the prosecution put its case on this point, at page 25 lines 7 to 15, which we have quoted above. It is clear that the prosecution was saying that the “circumstances of the treatment” of the other victims was so similar that a conclusion that the appellant had administered insulin to Mrs Hall would assist them in deciding he had done the same to the other four.

[85]Secondly, the judge told the jury, at page 26 lines 9 – 13, quoted above, that if they were not sure the appellant had killed or attempted to kill Mrs Hall, the evidence in relation to Mrs Hall will have no relevance or value in their consideration of the other cases, unless their conclusion undermined the prosecution case on them. That might be called an “exclusionary” direction. Thirdly, the judge then gave the jury what might be called his “inclusory” direction, at page 26 line 14 to page 27 line 2. The judge was very careful to set out the cumulative circumstances in which the jury could use a conclusion relating to Mrs Hall.(1) The jury had to be sure that the appellant had injected Mrs Hall with insulin.

(2) It also had to be sure that the circumstances of the death of Mrs Hall and those of the other patient whose case they were considering “were sufficiently similar for you to conclude that the same person must have been responsible for both deaths, or in Mrs Wilby’s case her attempted murder”. Fourthly, however, the judge went on to say (page 26 lines 19 to page 27 line 2) that if the jury even if they were satisfied that the insulin or sulphonylureas was administered to “one or more ladies” and there was “a realistic possibility that the similarities might be a matter of acceptable coincidence” so that those drugs might have been administered by another person, then the evidence of what happened to another lady was of no relevance and must be ignored. That was a further “exclusionary” direction.

[86]Lastly, in this section, the judge re-emphasised that the jury must look at the evidence relevant to each case: page 27 lines 3 – 10. He warned them that even if they were sure that the appellant was the person who administered the insulin to Mrs Hall, they must “not jump to the conclusion that he administered the insulin or sulphonylureas to one or more of the others”. The judge reminded the jury at the end of his consideration of the evidence on each of the victims on how they should approach their task.

[87]We cannot see how the judge could have been more careful in the directions that he gave the jury on this topic. In our view, on the facts of this case it would only have confused the jury to couch the direction in terms of the “bad character” provisions of the 2003 Act, let alone to mention “gateways” and so forth. (Compare the remarks of Lord Phillips CJ in R v Campbell

[2007] EWCA Crim 1472

[2007] 1 WLR 2798

at para 24).

[88]We are quite satisfied that there was no misdirection to the jury on the issue of identity. We reject the second ground of appeal. Conclusion

[89]For the reasons we have given, we reject both grounds of appeal. The case against the appellant was very strong indeed. We are quite satisfied that the convictions of the appellant on all five counts were safe. The appeal is dismissed.

[90]We wish to repeat our sincere admiration for the way in which Griffith Williams J dealt with all the complex issues in this case, in particular the vast amount of scientific evidence, in his summing up to the jury. It was a tour de force.