Whorlton Hall hospital housed patients with longstanding learning disabilities and significant additional psychological and behavioural needs, who required specialist care. Some were detained under s.3 Mental Health Act 1983. Over 38 days, an undercover reporter, Olivia Davies, filmed footage of abuse and mistreatment at the hospital for a BBC Panorama documentary. In consequence, 9 members of staff were charged; 5 were cleared, and 4 were convicted on a number of counts of ill-treatment of a person in care, contrary to s.20 Criminal Justice and Courts Act 2015. Two of those convicted, Matthew Banner and Paul Bennett, both of whom held senior healthcare roles there, appealed to the Court of Appeal against their convictions. The Court of Appeal’s judgment in R v Banner; R v Bennett [2024] EWCA Crim 1201, provides an important addition to the (small) stock of reported cases concerning s.20 Criminal Justice and Courts Act 2015.
The material incidents bear setting out in full, relating to two patients, AD (a 20 year old autistic woman) and LH (an autistic woman with communication challenges).
10. The incident in Count 2 occurred on 6 January 2019. AD was agitated and the appellants went to her room and told her that, unless she calmed down, the female carers would not come back and three males would be supervising her: this was the subject of count 1, on which the appellants were acquitted.Whilst AD was screaming, Bennett “twanged” a balloon in her room. Although not caught on camera, he asked her if she liked balloons and was showing/describing different coloured balloons to her. When she said “No”, he continued to talk about balloons, asking who had brought the balloons in for her. She said that her mother had and he asked her if that was cruel of her mother, if she did not like balloons.
11. Counts 3, 4 and 8 related to incidents that occurred on 11 January 2019. AD was distressed and screaming. Banner had pushed her back into her room in an appropriate manner. Once AD had calmed down, another defendant told her that if the calm behaviour did not continue, then the female carers would be sent away and she would have male carers: this was the subject of count 8, on which the other defendant was acquitted. Banner asked AD if he should tell the other defendant that she wanted two male carers and she continued to scream. Once she had calmed down Banner, from outside the room, asked if she liked balloons. Banner then left and when he returned he asked her again if she liked balloons (the subject of count 4). She continued to scream and he asked whether she wanted three, four, five or six men before saying “we can keep going” (the subject of count 3).
12. The incident in count 5 happened on 28 January 2019. AD had been intermittently screaming and, when Banner entered the room, AD screamed and said “No”. Notwithstanding this Banner remained in the room and danced to the words that AD was repeating. He kept asking her whether she wanted him to stay and told her that he and another defendant would remain if she did not calm down. He asked her about balloons as that would take her mind off things. He pretended to forget her name and fist pumped when she screamed and repeated words. He left the room saying that he would not listen to her and singing “Olivia knows she likes to muff dive”.
13. The incident in count 6 happened on 21 February 2019 when AD was distressed. Banner told a female carer to come out and turn the room light off. He asked AD if she liked balloons because, he told Olivia Davies, he was curious.
14. The incident in count 7 happened on 22 February 2019. AD was screaming and Banner stood at her open door and asked her if she liked balloons to which she said ‘sorry’ and he laughed, said it was weird and left.
15. The incident in Count 13, which concerned LH, happened on 28 February 2019. When LH was using sign language, Bennett spoke French to her and when she came out of the room he “bounc[ed] suddenly towards her, causing her fear”.
Distilled to their essence, the appellants’ cases, as set out at paragraph 32 of the judgment, were that:
(1) The Judge failed to give an adequate definition of the term “ill-treatment”. For example, the Judge made no reference to adjectives such as “cruel” or “abusive”, although those had featured in the Crown’s opening to the jury. The appellants submit that it is one thing to engage in what may be regarded as unprofessional behaviour but that does not mean that Parliament intended it to be criminal. They also submit that the various dictionary meanings of the term “ill-treatment” are so broad that, without further assistance, the jury may have applied a meaning which was so broad that it would unacceptably cover conduct which ought not to be regarded as criminal. For example, the Oxford English Dictionary gives the following definition: “bad or unfavourable treatment; rough handling; harsh or unsympathetic feelings”. The Cambridge Dictionary gives the following definition: “the act of treating someone badly, especially by being violent or by not taking care of them”. The Collins Dictionary gives the following definition: “harsh or cruel treatment”.
(2) The second main submission advanced on behalf of the appellants is that, however wide the definition of ill-treatment may be, there was insufficient evidence before the jury upon which they could reasonably convict and therefore the case should have been stopped at half time on the relevant counts. For example, in relation to Count 2, it is submitted on behalf of Bennett that there was unchallenged evidence from his wife, Sarah Bennett, at the trial, to the effect that AD clearly had a desire to possess balloons on several occasions and therefore any reference to balloons by Bennett could not amount to ill-treatment, as it was commonly known that she chose to engage with balloons. In relation to Count 13, it is submitted that there was no reference in LH’s care plan that she should not be spoken to in any language other than English. There is no other basis to conclude that speaking in a foreign language for only a few words would amount to ill-treatment on any interpretation. The same is submitted in relation to Bennett rising from his chair as LH advanced towards him.
The Court of Appeal had little truck with both of these:
33. We reject the first way in which the submissions for the appellants are put. There was no requirement for the Judge to define the term “ill-treatment” beyond what he had said in his written and oral directions of law.
34. First, the term is an ordinary one of the English language and should not be given any judicial gloss. Parliament has used the term in a number offences of this type, going back at least to section 1 of the Children and Young Persons Act 1933 (“the 1933 Act”). The same term appears in section 127 of the 1983 Act. It has not been suggested that this has caused difficulty to juries or otherwise in the many decades that they have had to apply similar legislation. As the term “ill-treatment” is an ordinary one of the English language, juries can be expected to understand what it means and apply it without the need for dictionary definitions.
35. Secondly, it is clear that the Judge carefully drafted his direction of law on the offence by reference to the decision of this Court in R v Newington(1990) 91 Cr App R 247, at 254, where Watkins LJ said:
“All of those considerations demanded a very careful direction as to mens rea. In our judgment the judge should have told the jury that for there to be a conviction of ill-treatment contrary to the Act of 1983 the Crown would have to prove (1) deliberate conduct by the appellant which could properly be described as ill-treatment whether irrespective of [this is a typographical error in the law report and should read ‘irrespective of whether’] this ill-treatment damaged or threatened to damage the health of the victim and (2) a guilty mind involving either an appreciation by the appellant at the time that she was inexcusably ill-treating a patient or that she was reckless as to whether she was inexcusably acting in that way.”
36. Both the elements of the offence, including the mental element, need to be proved by the prosecution. The words “properly” and the word “inexcusably” are important in this context. They will constrain the potential breadth of the term “ill-treatment” to proper bounds, as intended by Parliament. In Newington the Court deprecated attempts by the Judge in that case to go beyond the wording used by Parliament. We also would deprecate such attempts.
37. It is also notable that there is 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 2015 Act. Parliament has chosen not to include the further requirement, which does appear in section 1 of the 1933 Act, that the treatment must be likely to cause injury or harm. This was a significant distinction in the wording as between the 1933 Act and the 1983 Act, to which this Court drew attention in Newington, which was decided in 1990. When Parliament came to enact the 2015 Act, it can be taken that it was content to legislate on the basis of the interpretation which had been given by this Court in Newington to the materially identical provision in the 1983 Act.
38. Thirdly, what counsel say in speeches, including here the opening speech by the Crown, does not constitute either evidence or a direction of law to the jury. Directions of law come from the judge. In this case they were given to the jury in written form, as was a written route to verdict. Helpfully, the written directions of law were given to the jury at the outset of the trial. This was done with the agreement of all parties. The defence did not suggest at that stage that any further definition of “ill-treatment” needed to be given to the jury. We can see no reason why the Judge should have done so. To the contrary, we consider that the way in which the Judge handled this sensitive case was exemplary.
39. Turning to the second main way in which the submissions are put on behalf of the appellants, these squarely raise issues of fact which were classically for the jury to decide and not for the Judge nor for this Court. The jury had the whole of the evidence before them. This included the film footage, the relevant parts of which we have also seen. They could make their own mind up, for example, about what the appellant Bennett’s motivation was when he rose from his chair towards LH. There was certainly a case for him to answer. In due course he did give evidence at the trial and gave his explanation, which was clearly rejected by the jury in light of his conviction on Count 13.
40. Similarly, in relation to the incident concerning balloons, there was an issue of fact for the jury to decide at the trial as to whether what was done by way of “twanging” the balloon was an effort in good faith to use a distraction technique so as to calm AD down or whether it was inexcusable ill-treatment, with the requisite mental element, either knowledge or recklessness. Again, there was a case for the appellants to answer and they had the opportunity to give evidence in response to the prosecution case after the Judge had rejected the submission that there was no case to answer.
41. In our judgement, the questions which this case raised on the relevant counts against these appellants were classically ones for the tribunal of fact (the jury) to decide after hearing all the evidence. The trial Judge cannot be criticised for leaving these issues to the jury in accordance with the judgment of this Court in R v Galbraith [1981] 1 WLR 1039, at 1042 (Lord Lane CJ).
42. Finally, we note that the jury clearly took their task seriously in this trial. They acquitted the appellants on Count 1. This illustrates the point 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 which they had been given by the Judge.
Comment
The Court of Appeal’s approach is helpful and important in confirming that conduct which might on its face appear to be entirely innocent – ‘twanging’ balloons or speaking French – could, depending upon the circumstances, amount to ill-treatment. There is a separate point, not before the Court of Appeal, as to whether the sentences that both men got (case a suspended sentence of 4 months imprisonment, and unpaid work requirement of 280 hours) appropriately reflects the seriousness of the harm that they caused to AD and LH,