Webb, R. v [2011] EWCA Crim 152

[2011] EWCA Crim 152

Case No 2010/06917/A5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 26 January 2011

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE EADY

and

MR JUSTICE SIMON

Between

R E G I N ACrown

- v -

Between

GEORGE HUGH WEBB

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(Official Shorthand Writers to the Court)

Mr S Batiste appeared for Applicant

J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is a tragic case. The applicant, George (known as Hugh) Webb, is aged 73 and has never appeared before the courts before now. On 8 December 2010, in the Crown Court at Sheffield, before McCombe J and a jury, he was acquitted of murdering his wife but convicted of manslaughter on the ground of diminished responsibility. He had never denied that he was responsible for his wife's death and was always willing to plead guilty to manslaughter. On 9 December he was sentenced to two years' imprisonment. An appropriate order was made in relation to time spent in custody on remand. The Registrar has referred the applicant's application for leave to appeal against sentence to the full court. We grant leave.

[2]The appellant married his wife Beryl in August 1961. They had therefore been married for very nearly fifty years at the date of her death. They had no children. He had a half-sister to whom both he and his wife were very close, and she had three children. His sister's husband had died tragically and prematurely about a fortnight before Mrs Webb was killed.

[3]The marriage between the appellant and his wife was not always happy. In the early years, from time to time, Mrs Webb had cause to complain about her husband's behaviour. He was irascible and on occasions, according to her, she was treated with violence. But however that may be, during the last fifteen years of her marriage and her life they were a devoted couple within the terms of their own relationship and he cared for her in circumstances to which we must come.

[4]Mrs Webb had been an energetic young woman, but for many years she had suffered from a number of medical symptoms, some of which were undoubtedly real and some of which were imagined (although they were no less real to her). In short, a long-standing personality disorder led her to imagine that she had illnesses that she did not have, and to exaggerate the problems where her complaints were real.

[5]In the last few years before her death, when the appellant gave up work to look after her, her illnesses included depression, serious problems with mobility, incontinence of urine, a possible prolapse of the womb, transient ischaemic attacks and breast cancer. By the time of her death she was convinced that the cancer from which she had suffered and been treated in 2002 had been of a virulent nature and that it had returned to other parts of her body, including her head and her bladder, and that this was contributing to her urinary incontinence, was causing aches in her head and her ears, and causing her eyesight to fail. She was convinced that, at any time and without warning, she was likely to suffer a major stroke that would paralyse her and/or render her speechless.

[6]Gradually the couple became increasingly isolated, living with each other in their own "bubble", feeding on each other's depression. The appellant was not in good mental health. The conditions under which he lived, caring for his wife, led him to develop a psychiatric condition diagnosed by psychiatrists after the death of his wife as an adjustment disorder. The practical effect of his condition is illustrated in this way. As it developed, it became increasingly difficult for him to make even simple domestic decisions and simple telephone calls. The disorder was described as a state of subjective distress and emotional disturbance which interfered with social functioning and performance. It arose in the period of adaptation to a significant life change or a stressful life event. The diagnosis tallied with a medical history of long-term depressive symptoms and significant weight loss which had become marked by the time of Mrs Webb's death. Their conditions were exacerbated by the isolation into which they had both cocooned themselves.

[7]The psychiatric evidence was that towards the end of her life the appellant would have found it difficult to resist the pressure from his wife to step in, if it be came necessary, to finish her life for her. That is what she wanted. That is what she said on many occasions. The evidence that she wished to end her own life is not dependent upon assertions by the appellant alone. On many occasions and to many people she had expressed her intention to end her own life. For an understanding of this case it is important to illustrate that this is so. We give one of many examples. On an occasion in March 2010, when she was looking very frail, a witness (whom we shall not identify) observed that something was different with her. Mrs Webb said, "I've had enough. I want to go". She went on to say that she planned to take her own life. She wanted to die; she had had enough of life. The witness described how, as a friend, she had been asked, "Would you think badly of me?" She said that she would use tablets. The friend said that Hugh would get into trouble and that she would not want that. But Mrs Webb said that she would not need Hugh's help. The witness commented that her feeling was that Mrs Webb was preparing to take her own life and was building herself up to the right time. She had clearly been thinking about it. There was no question that she might not do so. She confided in her friend that she had had enough. The witness commented that the appellant was a kind, helpful man who would be seen helping his wife into and out of the car as necessary.

[8]Later, Mrs Webb was to tell the appellant's sister that she no longer wanted to rely on her husband. "He has got his life." She was adamant that she would "do this. We've made us will and I've done this and I've done that, and I've put my house in order".

[9]These are but two examples, but Mrs Webb's own writing produces a poignant series of documents in which she sets out her fears and anxieties and her determination to bring her troubles to an end. A diary entry from March 2010 (to the extent that it is possible to decipher what was becoming a very uncertain hand) reads:

"If I take tablets and drink to go to glory I will be free of pain ...."

In April there is an illegible record which ended with her saying that she needed the tablets. On the following day, 15 April she wrote:

"Both tried spirit to take me. Need him to get help. I have the money."

[10]There is a document in her own hand which gives a narrative account of some of her concerns. She is desperately anxious to end her own life. From time to time through the entries there are incoherent passages and then coherent passages which make it clear that the appellant does not want her to die and her anxiety that nothing should happen to him if she were to kill herself.

[11]On 14 May 2010, after many indications that she wanted to and would kill herself using tablets and efforts by the appellant to dissuade her from doing so, she told her husband that she was firmly resolved to end her life that day. Shortly after 4pm she gathered together a large number of Lorazepam tablets to take with brandy in a fizzy orange drink. The appellant carried the tray containing these items into their bedroom. She prepared herself for bed. Her thinking was such that she put on waterproof underwear so that the incontinence which would occur on her death would not soil the bedding. She got into bed and she took the tablets. She fell into a deep sleep and began to snore. After about three hours her sleep became lighter and the appellant began to fear that she would wake up. She had asked him not to let her wake up; and to spend the night with her when she died. He was prepared for the possibility that her effort to kill herself might not be successful. As her sleep became lighter, he took a plastic bag and a towel and smothered her. To do so he sat astride her in order to ensure that sufficient pressure was applied to her. At postmortem there were no signs of any struggle, although as he applied pressure to her face he described what had happened as "horrendous" and "a nightmare" because on the evidence she had struggled as an instinctive reaction rather than a conscious or late change of mind on her part.

[12]The cause of death was upper airway obstruction which had lasted for at least a minute. The overdose she had taken did not contribute to her death.

[13]The appellant did not immediately report what had happened. In accordance with her wishes he said that he wanted to spend one last night with his wife. The following morning he spoke to his wife and said his prayers. He then telephoned the police and reported what he had done.

[14]When the police attended his home the appellant told them:

"She has been asking me to do this for ages, but I couldn't do it"

. He explained what she had taken. He said, "She asked me not to let her wake up, so I smothered her. It was terrible. She was struggling, but I couldn't let her go on. I tried so hard to talk her out of it, but she asked me not to let her wake up. She's gone and I've done it for her." His confession was entirely consistent with all the known facts.

[15]The evidence at trial included that of two distinguished psychiatrists. The jury concluded that the appellant had suffered from diminished responsibility at the time of the killing; in short that, as a matter of law, his mental responsibility for his actions at the time when he killed his wife was substantially impaired. It is clear from the evidence and from our summary of the facts that the mental turmoil engendered by the impossible situation in which he found himself must have been intolerable.

[16]Following conviction a further psychiatric report was prepared. It describes the situation as it was in the context of the jury's verdict. Under "Opinion" the doctor states:

"2.2 .... there is a significant body of research that demonstrates the negative psychological impact of being a full-time carer for another person who is suffering from both physical and psychiatric disorder. In my view, that psychological effect will have been compounded uniquely by the complex relationship that must have existed between Mr Webb and his wife, whose own psychiatric difficulties, together with her suicidal drives, will have further undermined Mr Webb's mental health. 2.3 He appears to have been an individual who has not easily recognised his emotional distress and my clinical view is that many of his own physical health problems without an organic basis are probably manifestations of the way that his personality interacts with stress to produce physical ill-health. At times he has also developed more obvious episodes of depression and stress reaction. ...."

The view was confirmed, in accordance with the jury's verdict, that at the very least the appellant was suffering from a significant adjustment disorder with prominent features of depression at the time of the killing.

[17]The care taken by the judge with the sentence to be imposed on the appellant following his conviction is evidenced by the detailed, meticulous analysis of the facts of the case and his close examination of such guidance that this court has been able to give. Cases of this kind are always unique. Each has its own individual and singular characteristics. The judge considered the decision in R v Inglis

[2010] EWCA Crim 2637

, but that was a very different case to this. Although the common feature of the two cases was that they were mercy killings, in Inglis the killing followed a first failed attempt. There were a number of aggravating features. Diminished responsibility did not arise and Mrs Inglis was not under pressure from her son to kill him. The judge also considered R v Wood

[2009] EWCA Crim 651

[2010] 1 Cr App R(S) 2

, where the court addressed some of the problems which arise in the context of sentencing in manslaughter cases in the light of Schedule 21 to the Criminal Justice Act 2003 which had significantly increased the minimum term to be served by offenders convicted of murder. Thus he reminded himself of the way in which the court suggested that, in assessing the seriousness of a killing consequent on manslaughter rather than murder, regard should be had to the criteria for determining the minimum term to be served in murder cases and then to reduce the sentence to allow for the extent to which the culpability of the offender was reduced by his or her mental condition. The judge acknowledged that it had been submitted to him that the court could properly pass a sentence short of immediate custody. His view was that this was an unlawful killing, not an assisted suicide. The appellant's responsibility was diminished, not extinguished. He knew what he was doing and that what he did was unlawful; and the possible consequences of what he was doing when he was doing it. The judge was concerned that to pass a sentence short of immediate custody, even in the circumstances of this case, would give a wholly erroneous indication that such killings did not warrant punishment.

[18]We are invited to reconsider the sentence imposed by the judge in the light of the submissions made to him about the way in which the starting point should be ascertained. The judge's approach was to look at Inglis, to remind himself that the minimum term of five years represented a ten year determinate sentence, and to consider that if this had been a case of murder the sentence would have been a three year minimum term, which would have meant six years to be served. He took the view that to allow for the element of diminished responsibility the period should be halved so as to make a three year determinate term, and then he gave a discount for the early guilty plea of the full extent normally allowed in cases like this on the basis that the appellant had immediately told the police what he had done and had never denied that he had been responsible for the death of his wife.

[19]It is argued that, careful though the judge was in his approach to the case, the end result was a sentence that was too long; an insufficient allowance was made for all the available mitigation. Our attention was drawn, as the judge's attention was drawn, to some of the criteria applied by the Director of Public Prosecutions in deciding whether to prosecute in cases of diminished responsibility. We recognise, as the judge was at pains to underline, that this is not a case of assisted suicide. It is a case of manslaughter. The facts that we have narrated make that clear.

[20]Nevertheless, it seems to us that there are features of this case which bring it close to an assisted suicide. The features said to be in favour of prosecution are non-existent, save for the evidence from the early days of the marriage of complaints that the appellant had been violent towards his wife, but they were long since dissipated by the fifteen year period before her death when he had given her devoted care.

[21]As to the features suggesting that there should be no prosecution in an assisted suicide, these included that Mrs Webb had reached a voluntary, clear, settled and informed decision that she must end her life. In acting as he did, the appellant was motivated not so much by compassion for her, but by a desire to enable her to achieve what she had decided that she wanted to do. In the past he had tried to dissuade her from taking any action which might end her own life. What he did amounted to reluctant assistance in the light of her determined wishes.

[22]There is possibly a problem about the fact that he did not immediately telephone the police after she had died, but in the circumstances of this case the appellant is hardly to be criticised for wanting to spend the last night with his wife before reporting her death to the police after which her body would be removed from their home. He fully assisted the police with all their inquiries into the circumstances of what had happened.

[23]Although those are factors which feature in cases of assisted suicide, they are in our judgment all features of mitigation in this case which must be borne in mind. There are also the usual features of mitigation. The appellant is in his early seventies. He was a man of previous good character. He had an impeccable employment record, all of which came to an end when he started to care for his wife. Quite apart from that, there was his own health, encapsulated in the acceptance by the jury that he suffered from diminished responsibility, which took the form of a serious adjustment disorder brought about by the circumstances in which he and his wife were living in the cocoon at the end of her life.

[24]On any view this was an exceptionally difficult sentencing exercise. The killing of Mrs Webb was, and will always be, the result of an unlawful act. On the basis of diminished responsibility it was not murder, but manslaughter committed as a mercy killing intended by the appellant to help his wife achieve her settled intention to end her own life, notwithstanding his pleas to her that she should not do so. In our judgment his actions in this case came very close to the offence of assisting in his wife's intended suicide, acting as he did to fulfil her clear, unequivocal wishes to end her life, so that when she failed to achieve what she wanted, he took over from her.

[25]All this must be set in the context of a man whose responsibility, if not altogether extinguished, was substantially reduced. We accept the submission that if he had not been in the situation in which he was and suffering from the condition from which he did suffer, it is most unlikely that this killing would have occurred. We remind ourselves of the turmoil which he must have suffered as he committed the last fatal act.

[26]The appellant has now served the equivalent of a sentence of six months' imprisonment. In the unusual and particular circumstances of this case we do not believe that the principle of the sanctity of human life would be undermined if the sentence imposed on the appellant were now reduced to one of twelve months' imprisonment, suspended, so that this lonely old man may receive the help that he will need to come to terms with the disaster that has overtaken him.

[27]The order we shall make is that this will be a sentence of twelve months' imprisonment suspended for twelve months. We shall attach a supervision order to it. The order will be that for a period of twelve months from the date of this order the appellant will be under the supervision of the responsible officer assigned to the local justice area of Rotherham. He shall keep in touch with the responsible officer in accordance with such instructions as may from time to time be given by the officer. He must notify the officer of any change of address. There will be a supervision requirement that he will attend appointments with his responsible officer or another person at the times and places as instructed. In addition, he must co-operate with any arrangements made by his general practitioner for treatment or counselling for a period of twelve months from today's date. To this extent, we shall allow the appeal. ________________________________