Judge: Pitchford LJ, Treacy J and HHJ William Davis QC
Citation:  EWCA Crim 1513
Summary: This case provides further clarification as to the constituent elements of the offence of wilful neglect of a person lacking capacity created by s.44 MCA 2005; as such, it provides a useful sequel to the earlier decision of R v Dunn  EWCA Crim 2395, reported in our May issue.
The effective owner and manager, respectively, of a care home appealed against convictions returned in June 2010. During the course of the trial before the Crown Court, the two had sought to argue that s.44(1)(a) (providing that s.44 applies if D has the care of a person who lacks, or D reasonably believes to lack) capacity was so vague that no prosecution could hope to succeed. This was repeated as a ground of appeal. The Court of Appeal made it clear that they had substantial doubts as to what it was that the matter in respect of which a judgment of capacity had to be made, such that, unconstrained by authority, they would have been minded to accede to the submission that s.44(1)(a) (read together with s.2(1)) MCA 2005) was so vague as to fail the test of sufficient certainty at common law and under Article 7(1) ECHR. However, and whilst expressing some reservations about the judgment in Dunn, they considered that the ratio of the earlier decision was conclusive as to the question of the relevant capacity – i.e. namely the person’s ability to make decisions concerning his or her own care. They therefore found that this ground of appeal was not made out.
The Court then went on to consider the interaction between s.44 and s.2(4) MCA 2005; and held (importantly) that s.2(4) – providing that the question of capacity in proceedings is to be determined on the balance of probability – was binding even in criminal cases, such that the prosecution must prove (1) to the criminal standard that the defendant ill treated or wilfully neglected a person in his care, and (2) that on a balance of probability that person was a person who at the material time lacked capacity.
Finally, the Court turned to the question of the judge’s handling of the issues of wilful neglect. They made it clear that they considered that, given the wording of s.44 MCA 2005, the critical requirement is that each juror is sure that during the indictment period the defendant was guilty of wilful neglect; it did not matter whether they were agreed upon each failure of care relied upon by the prosecution. The Court had some, frankly, withering remarks to make as to the adequacy of the judge’s summing up of the evidence and of the issues, which, cumulatively, led them to the conclusion that the verdicts could not be sustained. Those remarks were specific to the cases before the Court; for present purposes, it suffices to note that the Court did identify that, where the defendants were persons whose primary responsibility was supervision and management, “[t]he jury needed to ask in respect of each [alleged failing on their part] (1) are we sure lack of care is proved?; (2) if so, are we sure that it amounted to neglect?; (3) if so, are we sure either (i) that the defendant knew of the lack of care and deliberately or recklessly neglected to act, or (ii) that the defendant was unaware of the lack of care and deliberately or recklessly closed her mind to the obvious?” (paragraph 58).
Comment: It is perhaps not facetious to suggest that it is fortunate for the Government that the appeal in Dunn was heard before the appeals in Hopkins and Priest, because it is quite clear that, but for the earlier decision, this panel of the Court of Appeal would have had little hesitation in holding that s.44 was sufficiently poorly worded that it cannot ground an offence. Section 44 did, though, survive, and the clarification given as to the requisite standard of proof regarding the vulnerable adult’s lack of capacity is an important one. Had the bar been set to the criminal standard, it would have rendered it substantially more difficult to bring prosecutions – especially where, as is frequently the case, the adult has died before the matter actually comes to Court.