R v Banner [2024] EWCA Crim 1201
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Court of Appeal
Rex v Banner and another
2024 Sept 13;
Oct 18
Singh LJ, May, Griffiths JJ
Crime— Patient — Ill-treatment— Defendants healthcare workers at hospital for adults with learning disabilities charged with counts of “ill-treatment” of patients— Crown referring to “cruel” or “abusive” treatment in opening speech to jury— Whether definition of “ill-treatment” to jury adequate if omitting references to words “cruel” and “abusive”— Guidance on correct approach to term "ill-treatment"— Criminal Justice and Courts Act 2015 (c 2), s 20
The first and second defendants occupied senior healthcare roles at a hospital for adults with long-standing learning disabilities and significant additional psychological and behavioural needs who required specialist care. The defendants had undergone restraint technique training and attended courses on care plans. The victims were patients detained under section 3 of the Mental Health Act 1983. Footage taken at the hospital by an undercover journalist over a period of 38 days gave rise to allegations that the care the defendants provided to two named residents was at times “cruel and abusive” and amounted to “ill-treatment”. On one occasion, when one of the victims was agitated, the defendants went into her room and told her, unless she calmed down, the female carers would not return and she would be supervised by males. While she was screaming, the second defendant twanged a balloon and showed her others in different colours, asking her whether she liked them and continuing to talk about them after she said she did not. When he asked who had bought them for her and she replied her mother, he asked her whether that had been “cruel” of her mother when the victim did not like them. On another occasion, the first defendant twice asked the same victim whether she liked balloons. On a different occasion, the first defendant spoke in French to another victim who was using sign language and bounced at her in a frightening manner. The defendants were charged with counts of ill-treatment of a person in care contrary to section 20 of the Criminal Justice and Courts Act 2015 including the threat of withdrawal of female carers (count 1), the second defendant being charged inter alia, with the first incident involving balloons (count 2) and the first defendant with the second incident involving balloons and a subsequent incident (counts 4 and 7). The second defendant was also charged with speaking French and jolting at the second victim (count 13). With the agreement of the parties at the start of the trial, the judge gave the jury written directions of law which included the elements of the offence under section 20 in which he stated that the Crown needed to make the jury sure (i) that the defendant engaged in deliberate conduct which could properly be described as “ill-treatment”, and (ii) either the defendant knew that he was inexcusably ill-treating the resident or was reckless as to whether he was acting inexcusably in that way. He also made clear the Crown did not have to prove that any suffering or injury to health was caused by the conduct. When opening its case to the jury, the Crown referred to the defendants’ “cruel” or “abusive” behaviour and after the close of its case the defendants made submissions of no case to answer on various counts, counsel for the second defendant contending that since the victim in counts 1, 2 and 4 was frequently supplied with items to manipulate with her hands including balloons the reference to them could not amount to “ill-treatment”. Counsel for the first defendant submitted that speaking French was not in contravention of the second victim’s care plan so “ill-treatment” was not made out in count 13 and the first defendant’s movements had an innocent explanation. He also contended there was no prohibition on the use of male carers in the first victim’s care plans (count 1). The judge ruled that the counts would be left to the jury and outlined the ingredients of the offence of “ill-treatment”. Both defendants gave evidence. When he summed up the case, the judge reminded the jury of the written directions of law in a split summing-up dealing with the matters of law before counsels’ closing speeches. He also gave the jury a written route to verdict reflecting the written directions of law. The defendants appealed against conviction on the grounds that (1) the judge failed to give an adequate definition of the term “ill-treatment” making no reference to words such as “cruel” or “abusive” even though they had featured in the Crown’s opening to the jury and unprofessional behaviour was not criminal. The dictionary definitions of “ill-treatment” were so broad that, without further assistance, the jury might have included conduct which was not criminal. (2) However wide the definition of “ill-treatment” there was insufficient evidence before the jury for them reasonably to convict and the case should have been stopped at half-time on the relevant counts.
On the appeals—
Held, appeals dismissed. Since “ill-treatment” was an ordinary term of the English language, juries could be expected to understand what it meant and apply it without the need for dictionary definitions, it should not be given any judicial gloss and the judge was not required to define the term beyond what he had said in his written and oral directions of law. During the lengthy period Parliament had used the term in a number of offences of that type including section 1 of the Children and Young Persons Act 1933 and section 127 of the Mental Health Act 1983 it had not been suggested that it had caused difficulty to juries or otherwise in the many decades they have had to apply similar legislation. The judge drafted his directions of law carefully on the offence by reference to established authority. Both elements of the offence including the mental element needed to be proved by the Crown. The words “properly” and “inexcusably” were important in that context as they constrained the potential breadth of the term “ill-treatment” to proper bounds as intended by Parliament. There was an important distinction between the wording of section 1 of the 1933 Act and the later legislation such as section 127 of the 1983 Act and section 20 of the Criminal Justice and Courts Act 2015 in which Parliament had chosen not to include the further requirement that the treatment had to be likely to cause injury or harm. What counsel said in speeches, including the opening speech by the Crown, did not constitute either evidence or a direction of law to the jury because directions of law came from the judge. In the present case, they had, helpfully, been given to the jury in written form at the start of the trial with the agreement of all the parties and the defence did not suggest, at that stage, that any further definition of “ill-treatment” needed to be given to the jury and there was no reason why he should have done so since the way the judge handled the sensitive case had been exemplary. The judge also gave them a written route to verdict. The second way in which the defendants made their submissions raised issues of fact for the jury who had all the evidence before them to decide. There had been a case for the second defendant to answer and a case for both defendants to answer as to whether the twanging of the balloon had been done in good faith or whether it was inexcusable “ill-treatment” with the requisite mental element of knowledge or recklessness. The questions the case raised on the relevant counts were classically ones for the jury to decide after hearing all the evidence and the judge could not be criticised for leaving them to the jury, who took their task in the trial seriously, their acquittals on count 1 demonstrating that they were well able to decide for themselves whether what they saw and heard in the evidence as a whole constituted the offence of “ill-treatment” in accordance with the direction of law they had been given by the judge (paras 33–42, 43).
R v Galbraith [1981] 1 WLR 1039Not on Bailii!, CA and R v Newington (1990) 91 Cr App R 247, CA applied.
David Callan (assigned by the Registrar of Criminal Appeals) for the second defendant.
Stephen Constantine (assigned by the Registrar of Criminal Appeals) for the first defendant.
Anne Richardson and Richard Herrmann (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.
Georgina Orde, Barrister
Referenced Legislation
Criminal Justice and Courts Act 2015 (c 2), s 20