Dunn, R. v [2010] EWCA Crim 2935

[2010] EWCA Crim 2935

Case No 2010/03368/B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 23 November 2010

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE CALVERT-SMITH

and

MR JUSTICE GRIFFITH WILLIAMS

__________________

- v -

Between

CLARE DUNN

__________________

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Mr J Traversi appeared for Applicant

Mr I Clarke appeared for Crown

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J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an appeal by Clare Dunn for leave to appeal against her convictions on 20 May 2010 in the Crown Court at Southend before Mr Recorder Knott and a jury of four counts of ill-treatment of a person without capacity, contrary to section 44 of the Mental Capacity Act 2005 ("the 2005 Act"). The appellant's application for leave to appeal was referred to the full court by the Registrar and we grant leave.

[2]The single ground of appeal arises from the directions given by the Recorder to the jury about the constituent elements of the offence created by section 44 and in particular the concept of the absence of capacity for the purposes of this offence. It is submitted that his directions were incomplete and therefore wrong in law.

[3]Section 44 of the 2005 Act provides:

"(1) Subsection (2) applies if a person ('D') -- (a) has the care of a person ('P') who lacks, or whom D reasonably believes to lack, capacity, (b) is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or (c) is a deputy appointed by the court for P. (2) D is guilty of an offence if he ill-treats or wilfully neglects P."

On the face of it that is clear and simple language. Its purpose is to provide for the protection of those who are mentally disadvantaged from any form of ill-treatment.

[4]The facts do not require any lengthy recitation. At the material time the appellant was the manageress of "The Priory", a residential care home in East London. Initially the home cared for elderly residents only, but then the owners decided that they would care for elderly residents suffering from dementia. These residents became the focus of the home.

[5]The appellant was employed from 2005. She provided good references. However, police investigation began after December 2008 when fourteen members of staff at the home wrote a "whistle-blowing" letter to the owner of the home complaining about the way in which the appellant treated both the residents of the home and members of the staff.

[6]The prosecution case was that the appellant had ill-treated three individual complainants, FY, WI and GS.

[7]FY was born in October 1927. In 2002 he was diagnosed with Alzheimer's disease and mixed vascular disease. He was admitted to the home in December 2007. By March 2008 he was suffering from dementia and it was established that he was unable to make decisions himself. In truth, this unfortunate elderly man was utterly disorientated.

[8]The allegation against the appellant in relation to FY was contained in count 1. It was a specific allegation that between December 2007 and March 2009 the appellant had ill-treated Mr FY by putting him in an incorrect position in a hoist and transporting him from the lounge into the conservatory with his genitals exposed. He was distressed by this and was incontinent of urine during the process. Afterwards he was taken to hospital by ambulance.

[9]Count 2 related to WI. She was an elderly lady in her nineties, born in October 1914 and a resident in the home since 1997. She was diagnosed with dementia and short and long-term memory problems. It seems that she was no trouble to anybody. She was described as a pleasant elderly lady, with no behavioural problems. Count 2 covered a course of conduct. The allegation was that she was ill-treated by the appellant who held her clothing in a way that would cause Mrs WI discomfort and pain. Her trousers were pulled up very high, in a degrading way. She was thus held and then allowed to slump to the floor. Unfortunately, she also suffered osteoarthritis of the spine which meant that once she was on the floor she could not get up by herself.

[10]Counts 3 and 4 also covered a course of conduct. The victim of these offences was GS. He was born in June 1920. He suffered from moderate dementia and memory loss. No doubt because of the afflictions of his condition, he was a man who manifested significant behavioural problems. He was not only aggressive and loud, but was prone to molest some of the elderly female residents. The allegations were of ill-treatment which involved the appellant subjecting GS to abusive and offensive language (count 3) and on two occasions throwing a walking frame at him (count 4).

[11]The facts relating to the medical condition of the three complainants were not seriously disputed.

[12]The appellant gave evidence in her own defence. She denied that she had ill-treated any of the complainants. The "whistle-blowing" letter was the result of an orchestrated campaign by Janice Humphreys (a witness called by the prosecution). She had been motivated to write the letter out of spite and also because she hoped that the appellant would be sacked and that she (Janice Humphreys) would replace her as the manageress in the home. The appellant contended that Janice Humphreys had bullied the other members of the staff who had signed the letter into doing so. She was not a credible witness.

[13]At trial, therefore, the stark issue was: had the incidents of apparent ill-treatment taken place?

[14]When he came to sum up the case to the jury, the Recorder sought the assistance of counsel, with which he was provided, and he formulated the "preliminary question" that is the subject of discussion in this appeal in this way:

"What is 'a person without capacity'? A person 'lacks capacity' within the meaning of the Act of Parliament if he is unable to make decisions for himself because of some impairment or disturbance of the function of the mind or brain. The key phrase is, 'unable to make decisions for himself'. A diagnosis of dementia on its own is not enough. The impairment or disturbance may be permanent or temporary." 15. "

You always assume to start with that a person has capacity and then you look at the evidence as a whole including the medical evidence and you ask yourselves this question:

'Did he probably lack capacity?'

To put it another way, 'Is it more probable than not that he lacked capacity?'" Assuming that the jury answered that preliminary question adversely to the appellant and concluded, therefore, that the three complainants lacked capacity for the purposes of the Act, the subsequent directions given by the Recorder to the jury about the remaining ingredients of the offence are not criticised. Having considered them for ourselves, we regard them as having been carefully and correctly expressed in clear language.

[15]To understand the difficulties to which our attention has been drawn in the course of Mr Traversi's submission, we need to begin with a brief summary of the apparent objectWI of the 2005 Act. It is designed to address the problems of individuals who require important decisions affecting their lWI to be taken for them because they lack the necessary capacity to make such decisions for themselves. Unsurprisingly, therefore, the Act begins with sections which define those who are and those who are not within the remit of the Act's provisions by reference to their capacity to make such decisions. Part 1 deals with principles and definitions. It then goes on to deal with such questions as powers of attorney and the powers of the Court of Protection. It is unnecessary to go further through the legislative structure. We note that sections 42 and 43 provided for codes of practice to be made under the Act. Finally, section 44 creates the offence with which the appellant was charged.

[16]As the Recorder directed the jury, it is assumed that every individual has capacity for the purposes of the Act unless and until the contrary is established on the balance of probabilities. Section 2 defines the absence of capacity for the purposes of the Act as a whole, and therefore it extends to section 44. It provides:

"2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."

Pausing there, "the matter" is undefined. The section continues:

"(2). It does not matter whether the impairment or disturbance is permanent or temporary. (3). A lack of capacity cannot be established merely by reference to -- (a) a person's age or appearance, or b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4). In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. 21. ...."

That is the description of the meaning of "lack of capacity" in the context of the Act as a whole.

[17]Section 3 provides for complications, at any rate in the context of a criminal prosecution. It defines the circumstances in which an individual is to be found to be unable to make decisions for himself (or herself). It provides:

"(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable -- (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of -- (a) deciding one way or another, or (b) failing to make the decision."

This provision was described by Mr Traversi in his careful oral submissions as "providing a diagnostic test".

[18]For present purposes we need not refer to the Code of Practice issued by the Lord Chancellor under section 42 of the Act, nor to the supplementary code issued in accordance with the same provisions.

[19]We return to the relevant sections. At first blush, and indeed on more mature reflection, these legislative provisions do not appear to be entirely appropriate to defining the constituent elements of the criminal offence of ill-treatment of a person without capacity. By the time sections 2 and 3 are analysed and related to an individual case, they become convoluted and complex when, certainly in relation to a criminal offence, they should be simple. But we pause to remember the purpose of section 44 and the creation of the offence; and bear in mind that everyone, who for whatever reason but in particular the natural consequences of age, has ceased to be able to live an independent life and is a vulnerable individual living in a residential home, is entitled to be protected from ill-treatment if he or she lacks "capacity" as defined in the Act.

[20]We have outlined the way in which the Recorder directed the jury on this issue. The criticism of the direction, as we have already indicated, is that it was insufficient or inadequate. The problem, so Mr Traversi argues, is that the way in which the Recorder directed the jury was too broad and not sufficiently specific for the purposes of identifying for each individual whose case was under consideration the matters identified in section 3 (ie the diagnostic questions). As to this, although it is right that the Recorder made clear in his summing-up that his direction applied to all three of the complainants in question, it was not enough for him to explain these matters in the way that he did. In the end the direction is said to have failed to focus sufficiently on the capacity of each of them to make decisions at the time with which the counts in the indictment were concerned.

[21]The question therefore, in each of these cases, is whether the absence of express reference to "the specific decision test of capacity" and "the specific time of decision requirement" resulted in a direction that was flawed because it was incomplete.

[22]In each case with which the court is concerned, the ill-treatment occurred in the course of the provision of care in circumstances which the jury found (and if they rejected the appellant's account on the evidence, unsurprisingly found) constituted ill-treatment. Although, as Mr Traversi's submissions indicated, there is something of a disconnection between the simple criminal offence created by section 44 of the Act and the elaborate definition sections which are directed to the more general questions of mental capacity in the wide context of the legislation as a whole, nevertheless the stark reality is that it was open to the jury to conclude that the decisions about the care of each of these residents at the time when they were subjected to ill-treatment were being made for them by others, including the appellant, just because they lacked the capacity to make these decisions for themselves. For the purposes of section 2, this was "the matter" envisaged in the legislation. On this basis the Recorder's direction properly expressed the issues which the jury was required to address and resolve by putting the direction clearly within the ambit of the language used in section 2.

[23]In the context of long-term residential care, and on the facts of this particular case, it was unnecessary for the Recorder further to amplify his directions and complicate the position for the jury by referring in this part of his summing-up to any of the provisions of section 3, or for them to be incorporated into his directions. Therefore, the omission to incorporate them or to refer to the material contained in section 3 does not lead us to doubt the safety of the conviction of offences contrary to section 44 of the 2005 Act. Accordingly, this appeal will be dismissed. _____________________________________