This week’s Digest considers three judgments: two from the Court of Appeal (Criminal Division) and one from the Court of Appeal (Civil Division). The first asks whether the offence of ill-treatment or wilful neglect under s.44(1)(b) of the Mental Capacity Act 2005 requires the prosecution to prove that the victim lacked capacity; the second assesses whether a sentence of five years’ detention for a conviction of wounding with intent was manifestly excessive or overly lenient; and the third considers the correct approach for assessing damages following an unlawful arrest and false imprisonment where the arrestee would have been arrested lawfully had the correct procedure been followed.
R. v Kurtz [2018] EWCA Crim 2743
The judgment, available here, was handed down by Macur LJ on 10 December 2018.
The Registrar of Criminal Appeals referred this application concerning the scope of the offence created by s.44(2), read with s.44(1), of the Mental Capacity Act 2005. An offence is committed where a person (‘D’) ill-treats or wilfully neglects another person (‘P’) in the situation where under s.44(1)(a) D has care of P and P lacks or D reasonably believes that P lacks capacity; s.44(1)(b) D is the donee of a power of attorney created by P; or s.44(1)(c) D is a deputy appointed by the court for P. The question was whether under s.44(1)(b), like under s.44(1)(a), the prosecution must prove that the person alleged to have been wilfully neglected or ill-treated lacked capacity. The court held that this was the case, and as the judge had not directed that the appellant must have reasonably believed that P lacked capacity to look after herself the conviction was unsafe.
Factual background
The appellant had been convicted of an offence of wilfully neglected her mother in respect of whom she was the donee of an enduring power of attorney (‘EPA’). At the time of her death her mother was malnourished, seated upright in her own urine and faeces, and had not changed her clothing for many, many months. Her overall appearance suggested that she had not received any attention for over a year. The appellant was a 41-year old solicitor of good character and was described by a senior partner as having particular empathy for the elderly while at work. She specialised in issues relating to mental capacity and dealt with other people’s powers of attorney. In 2006 her mother had granted her an EPA.
At trial the prosecution submitted that, under the strict requirements of s.44(1)(b), there was no need for the prosecution to prove that the mother lacked capacity or that the defendant reasonably believed that she lacked capacity. It was enough that the mother had been ill-treated or wilfully neglected. The trial judge acceded to this submission, stating that on the face of the legislation there was no need for either a lack of capacity to be known or believed by D, nor that there had been a finding elsewhere on the balance of probability that incapacity existed.
Discussion
On appeal the appellant argued, first, that s.44(1)(b) should only apply to registered EPAs. The appellant had never registered her EPA. Secondly, she argued that in order to reflect the mischief which s.44 was designed to address s.44(1)(b) should be read as if it required the prosecution to prove the lack of capacity requirement in relation to the donor of the EPA. The respondent submitted that the mere fact that the appellant was the donee of her mother’s EPA was enough to trigger a duty on her not to ill-treat or wilfully neglect her mother.
The court rejected ground 1. Paragraph 2(1) of schedule 4 to the 2005 Act provided an express definition of an EPA which did not include a requirement for registration. However, the court accepted ground 2. The genesis of s.44 lay in earlier statutory provisions criminalizing the neglect and ill-treatment of those suffering from mental disorder and the perceived need to extend the reach of those provisions, but only in relation to incapacitated persons. After discussing the Law Commission’s 1995 report Mental Incapacity, the Lord Chancellor’s 1997 Consultation Paper, and the 1999 Government policy statement, all of which led into the 2005 Act, the court found that there was no suggestion that there was any perceived need to extend the new provisions of the 2005 Act to the ill-treatment or neglect of those with capacity. The court further invoked the rule in Pepper v Hart [1993] AC 593 to adduce evidence from the readings of the Mental Capacity Bill that the Bill was intended to protect and support people who lack mental capacity.
The court also noted that, unusually in English law, the s.44 offence imposes criminal liability for an omission (wilful neglect). The interpretation of s.44 advocated by the respondent could potentially have represented a significant policy departure from the criminal law’s traditional approach. Had Parliament intended this result, it would have made this clear through unambiguous language.
Conclusion
The appeal was allowed. Despite the evidence which suggested that, at a minimum, the appellant should have believed her mother to lack mental capacity in matter of personal welfare, the judge’s failure to direct the jury in this regard was fatal to the safety of the conviction.
R. v T [2018] EWCA Crim 2464
The judgment of Lord Burnett of Maldon CJ, dated 7 November 2018, is available here.
The case in this cross-appeal centred on whether a fifteen year-old boy’s sentence of five years detention for wounding with intent was manifestly excessive for being located in the wrong part of the sentencing guidelines, overly lenient for not considering the dangerousness provisions of s.229 of the Criminal Justice Act 2003, or neither. The Court found that the judge at first instance was wrong not to consider the dangerousness provisions and substituted an extended sentence of eight years.
The defendant had attempted to rob his victim as she was out walking late at night in Sheffield after an argument with her partner. In the course of the robbery he stabbed her six times, in two separate episodes. When the police arrived the defendant accused the victim’s partner of carrying out the attack, whereupon the partner was arrested. The victim suffered life-changing injuries.
The judge was sure that there had been two episodes of stabbing,that this was a sustained and repeated attack on the victim, that the underlying intent was robbery, that the injuries were serious, and that there was higher culpability given the use of a weapon. The attack was not premeditated and the defendant had no previous convictions. The judge placed the offending with category 1 of the guideline which, for an adult, have a starting point of 12 years’ custody. The defendant had experienced significant trauma and violence at home. The judge concluded that a custodial sentence of five years’ detention at Oakhill Secure Training Centre, as recommended by the pre-sentence report, would be appropriate. It would avoid the defendant going into a young offenders institution. He did not consider the dangerousness provisions of the 2003 Act engaged.
The appellate court agreed that this was a category 1 offence, and the judge’s starting point for the sentence could not be faulted. However, even apart from the evidence from the defendant’s school and social worker detailing his propensity for violence, the stabbing incident itself provided a strong foundation for a finding of dangerousness. It demonstrated a prolonged determination to cause really serious harm and was disturbingly aggressive. The defendant’s troubling history further suggested that the attack was an extreme manifestation of an underlying pattern of behaviour. The court therefore found him dangerous, and imposed an extended sentence comprising a custodial element of five years and an extension period of three years.
Parker v The Chief Constable of Essex Police [2018] EWCA Civ 2788
The judgment, available here, was handed down by Sir Brian Leveson P on 11 December 2018.
The Chief Constable appealed against damages flowing from the false imprisonment of Michael Parker, better known by his stage name Michael Barrymore. The case turned on how to construct the counterfactual and return Mr Parker to the position he would have been in had the tort not been committed. The court held that the correct counterfactual was to ask, though the arrest was unlawful, what the result would have been had the correct procedure been followed. He would have been arrested lawfully and so was not entitled to any substantial damages.
Factual background
In early 2001 Michael Parker hosted a party. One of his guests was found dead in the swimming pool. The death was treated as suspicious, but the investigation closed inconclusively before the end of 2001. It was subsequently re-opened in 2006, after which Mr Parker was arrested. However, the officer intended to effect the arrest was delayed in traffic, so the actual arresting officer did not himself have reasonable grounds to suspect Mr Parker of committing an offence. Mr Parker argued that under O’Hara v Royal Ulter Constabulary [1997] AC 28 this made the arrest unlawful and that as such he was entitled to substantial damages, valued in the order of £2.4 million, on the basis that he was re-establishing his career following from the publicity surrounding the death and the arrest.
The judge at first instance agreed, and rejected the submission of the Chief Constable that Mr Parker was entitled to only nominal damages on the basis that he could and would have been arrested lawfully by another officer who did fulfil the O’Hara criteria. The judge found that, had he not been unlawfully arrested by the officer that did arrest him, he would have been unlawfully arrested by another of the officers present on that day who similarly did not have the requisite information to form reasonable beliefs. The Chief Constable appealed. Mr Parker also appealed, on the grounds that there were no reasonable grounds for any arrest in the first place.
Discussion
The Chief Constable submitted that the judge at first instance failed to ask whether Mr Parker could and would have been detained had the officers acted lawfully. The court accepted that this was the correct test to be applied – in calculating damages, the counterfactual to be assessed had to consider what would have happened had the law been followed. The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not be committed, but that position must include the scenario where the procedure was correctly followed. This was where the judge at first instance had erred, by considering that Mr Parker would have been unlawfully arrested by another officer, rather than lawfully arrested by the designated officer who would have fulfilled the O’Hara principles.
This reasoning reflected the actual loss suffered by Mr Parker as a result of the unlawful arrest. Assuming there were reasonable grounds to suspect Mr Parker of committing an offence, and a reasonable belief in the necessity of the offence, the judge at first instance was wrong to conclude that he remained entitled to substantial damages.
On the facts, such a belief was reasonable as the evidence met the necessary low threshold, even though the re-investigation was closed without any further steps being taken. Mr Parker’s submissions, focusing on the material and attempting to undermine it piece by piece, were flawed in that they ignored its cumulative effect.
Conclusion
The judge at first instance was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, had things been done as they should have been done, lawful arrest would have been effected. The appeal was allowed and Mr Parker entitled to nominal damages only.
OTHER NEWS
Increases in police funding for 2019 announced
Ministers will allow increases in local taxes to help fund an additional £970m in police funding for 2019, though there are fears that the money will only be able to fund new officers and fighting crime after extra pension costs and the costs from inflation.
The full piece can be found here.
Child aged 11 arrested for dealing Spice
Drug dealers are encouraging children as young as 11 to become Spice mules with gifts such as trainers, mobile phones and bikes.
More details can be found here.
