Norris, R v

In a multi-count trial, the jury must decide separately in each case whether the medical event was caused by natural or non-natural causes. Evidence that a cluster of naturally occurring events would be extraordinary does not, without more, prove that each individual event was non-natural.

Where the jury is sure that a defendant unlawfully administered drugs in one case, that misconduct may be relevant under Criminal Justice Act 2003 to the identity of the perpetrator in similar charged cases. It is not necessarily propensity evidence. The jury may use it only if the circumstances are sufficiently similar and the similarities cannot realistically be explained by coincidence or another perpetrator.

The appellant, a hospital nurse, was convicted at the Crown Court at Newcastle upon Tyne of the murders of four elderly patients and the attempted murder of a fifth. The prosecution alleged that he had administered insulin or another anti-diabetic drug, causing severe hypoglycaemia. The prosecution relied on similarities between the five incidents and on the appellant being the sole common member of staff.

He appealed against conviction, contending that the trial judge had inadequately directed the jury on the cross-admissibility of evidence between counts. The appeal concerned both the cause of the hypoglycaemia and the use of a conclusion that the appellant had administered drugs in one case when deciding identity in another.

1. Appeal dismissed. The convictions were safe. The trial judge correctly required the jury to determine separately, in respect of each patient, whether natural causes for the hypoglycaemia had been excluded before considering who had administered any drug.

2. The evidence that five instances of naturally occurring hypoglycaemia within a short period and area would be extraordinary did not establish that each individual instance was non-natural. That would be fallacious reasoning. The judge nevertheless needed no express warning in those terms. His repeated direction to decide the cause of hypoglycaemia separately in each case prevented that reasoning and was the preferable course.

3. If the jury were sure that the appellant had unlawfully administered insulin to Mrs Hall, that was misconduct within Criminal Justice Act 2003. In relation to the remaining charges, it was capable of being relevant to the important issue of the perpetrator’s identity under section 101(1)(d). Its relevance was not based on a propensity to commit offences of the kind charged. The court compared R v DM [2008] EWCA Crim 1544 and R v Wallace [2008] EWCA Crim 1863.

4. Such evidence could be used only where the jury was sure of the unlawful administration in the first case and sure that the circumstances in the other case were sufficiently similar to support the conclusion that the same person was responsible. If there was a realistic possibility that the similarities were coincidental or that another person had administered the drugs, the cross-count evidence had to be ignored.

5. The directions gave those safeguards, repeatedly required separate verdicts, and warned the jury not to jump from a conclusion about Mrs Hall to conclusions about the other patients. It would have confused the jury to frame the directions in the statutory language of bad-character gateways.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and held that all five convictions were safe.

• Crown Court at Newcastle upon Tyne: Before Griffith Williams J and a jury, convicted the appellant of four murders and one attempted murder. He received life sentences for murder, with a 30-year minimum term, and a concurrent sentence of imprisonment for public protection for attempted murder.