Turbill & Anor, R. v

Wilful neglect under section 44(2) of the Mental Capacity Act 2005 requires a subjective mental element. It is not established merely by a breach of duty, carelessness, gross carelessness, or an objectively reckless failure to provide care.

The prosecution must prove either a deliberate failure to act or a failure arising because the defendant did not care whether action was required. Jury directions must clearly preserve that distinction. Unqualified references to recklessness or gross carelessness may wrongly equate negligence with criminal wilfulness and render a conviction unsafe.

Four care-home staff were charged in connection with the overnight neglect of an elderly resident who lacked capacity and was found collapsed in his room the following morning. The prosecution alleged that each accused owed him a duty and had wilfully breached it.

At Worcester Crown Court, before His Honour Judge Jukes QC, the two appellants were convicted on 17 July 2011. They received suspended sentence orders on 28 August 2012. They appealed against conviction on the single ground that the jury had not been adequately directed on the elements of wilful neglect.

The central issue was whether the summing-up had sufficiently distinguished the subjective mental element of wilful neglect from negligence or objectively reckless carelessness.

1. Appeals allowed. The convictions were quashed because the jury directions gave the court real doubt whether the jury had understood the essential mental element of wilful neglect.

2. Wilful neglect under section 44(2) of the Mental Capacity Act 2005 requires more than proof of a duty and conduct which a reasonable person would regard as a reckless breach of it. Following the subjective approach in R v Sheppard [1981] AC 394, the relevant fault is a deliberate failure to act, or a failure because the defendant does not care whether action is required. Carelessness, including gross carelessness, does not of itself suffice.

3. The trial judge repeatedly used such expressions as reckless disregard, recklessness and grossly careless lack of concern without defining recklessness or making sufficiently clear that it was not an objective test. Although the judge directed the jury to consider each defendant's state of mind separately, the cumulative effect of the directions risked equating negligence with wilful neglect.

4. The court observed that cases of this kind call for succinct written directions, agreed in advance by advocates and judge and tailored to the individual case. That observation was practical guidance rather than a basis of the order.

5. A retrial was ordered on the quashed counts. A fresh indictment was to be served within four weeks, the retrial was to take place on the Midland Circuit at a time and venue selected by the Presiders, and both appellants were granted unconditional bail.

• Court of Appeal (Criminal Division): Allowed the appeals, quashed the convictions because of inadequate jury directions, and ordered a retrial: [2013] EWCA Crim 1422.
• Crown Court at Worcester: Before His Honour Judge Jukes QC, convicted the appellants on 17 July 2011 and imposed suspended sentence orders on 28 August 2012. No lower-court citation was stated.