The jury were brought into court shortly after midday today. HHJ Smith thanked them and apologised that they were slightly later in than anticipated. HHJ Smith explained to the members of the jury that he had two documents for them, one was further legal directions, and a second was a Route to Verdict Questionnaire.
HHJ Smith mentioned the first part of legal directions which he’d given to the jury before they heard evidence from any of the witnesses, and said that the first of these two documents was a continuation of that. The end of the previous document was a direction which “touched upon Count 21, the allegation of wilful neglect faced by defendant Karen McGhee. That count came to an end earlier in the case”. He suggested to them that they might like to draw a line through Section F in the legal directions as they no longer need to worry about the legal definition of wilful neglect and its ingredients, as they are not considering that charge any longer.
HHJ Smith told the jury that he didn’t wish to insult their intelligence and so he wouldn’t go through the earlier document again, reminding them that they have it in writing, and he’d already been through it with them. He said that document included important principles such as the different roles that the jury and his honour, hold, in respect of the case. He reminded the jury members again that “what you are satisfied did or did not happen is entirely a matter for you” and he suggested that they’d have that in mind when he comes to give his summing up, and that they’d have it in mind critically as they listened to the arguments from each counsel.
Route to Verdict
HHJ Smith also told the jury that they’d have in mind what he’d said about proof, reminding them that it is for the prosecution to prove the case and that they will only prove it “if they make you sure of each of the ingredients”. He told them that it’s not for the defence to prove defendants are innocent, the fact defendants had provided evidence made no difference, they are not proving their innocence, that is not what a trial is about.
HHJ Smith told the jury that every criminal offence has a list of ingredients, and it is much like a recipe, if you miss an ingredient out the recipe won’t be a success in the end, your cake may not have risen or won’t taste right. He told the jury members in a similar way a criminal offence has a list of ingredients that must all be there, “if any one of those ingredients is missing then the prosecution won’t have proved their case”.
HHJ Smith went on to highlight the ingredients jury members had to be sure about, and explained that the Route to Verdict is designed to help them with that. He described it as a relatively simple question, stating that was his intention. He told the jury members it was one that they’d be required to use “more than once, many times in this case”. The jury were told that they’d need to consider the questionnaire repeatedly, once for each defendant and for each count in which they appear. It is only the final defendant, Ms Mahmood, that the jury would only need to consider the questionnaire for once, because all other defendants feature in more than one count on the indictment.
HHJ Smith told the jury members that there are three questions on the route to verdict, because there are three ingredients that they need to be sure of, when evaluating each defendant, in each count.
- Are we sure that the defendant had care of the other person by virtue of being a care worker?
HHJ Smith said that the answer to the first question was not in dispute in this case “not one of the defendants are saying I was not a care worker” within the legislative meaning, which is someone paid to provide healthcare or social care. HHJ Smith told the jury that includes supervisors and managers, and said that he didn’t think that they’d have any difficulty answering Question 1. D refers to the defendant that they are considering, and P to the patient mentioned within the indictment in that count.
HHJ Smith said that the wording of the question starts “Are we sure” and that those words are chosen for a reason, because they reflect the standard of proof which the prosecution needs to get to in this case. He told the jury members that if they were less than sure about any of the ingredients then the case would not be proven, and not guilty verdicts would be required to be returned.
If the jury answer yes to question one then they move on to question two.
2. Are we sure that on that occasion, in that count, the defendant who’s case we’re considering, ill-treated the patient mentioned in that count?
HHJ Smith said that he hoped that made perfect sense. He illustrated it with the first count on the indictment, explaining to the jury that they’d be considering the count twice, once for Peter Bennett and once for Matthew Banner, and that they would be looking individually at what each did or did not do. The first time they’d be asking are we sure that Peter Bennett did ill-treat Patient 1, as per the count.
HHJ Smith told the jury that only if they were sure, that the defendant they were considering had ill-treated the patient mentioned on the indictment, in the way stated in the count, would they then proceed to the next question. He told the jury to think of it as a flowchart, and if they were not sure then that would be the end of it, for that charge, for that defendant.
HHJ Smith told the jury that they knew a little bit about what ill-treatment means and that they’d had a direction about it right at the start. The route to verdict reminds the jury of Direction E in their legal directions.
If the jury answer yes to question two then they move on to question three.
3. Are we sure that the defendant knew that they were inexcusably ill-treating the patient, or that the defendant was reckless as to whether they were inexcusably acting in that way?
HHJ Smith said that inexcusably would be a matter for the jury, and that they were to give the word it’s everyday meaning. To help with reckless he told the jury “either they are doing that ill-treatment knowing it is ill-treatment, or they’re being reckless about whether they’re acting in that way”. HHJ Smith gave the jury a definition of what was meant by acting recklessly [I didn’t catch the end of it so won’t report it].
HHJ Smith told the jury only if they were sure on the third question could they find a defendant guilty of that particular count. He told the jury that they had to be certain “anything less than sure, then you won’t be sure will you, and that will be the end of the count, with a not guilty verdict”.
Second set of videos – legal directions
HHJ Smith told the jury that in relation to the counts and the allegations, an important part of the evidence is the footage and the transcripts of those pieces of footage which the jury have behind Divider 7. He said that they also had some other footage and transcripts behind Divider 8, which is in a different category.
HHJ Smith said that the behaviour behind Divider 8, the prosecution invite the jury to consider is not the subject of a count on the indictment, that it is background material. HHJ Smith said that he was going to give the jury a direction about that so they can have it in mind, when counsel are addressing them about material behind Divider 8.
HHJ Smith then asked the jury members to turn to the legal direction as he read it onto the record. He said that the prosecution said the footage in the second set of videos, captured pieces of unprofessional behaviour by a particular defendant, or admissions by them of other unprofessional behaviour in the past, that they’d either been involved in or witnessed.
HHJ Smith said that evidence didn’t relate to all defendants, there was none relating to Ms McGhee or Ms Mahmood. He said that an index to the footage had been prepared.
HHJ Smith told the jury that each of the defendants have said “look, it is what it is, it may be unprofessional on occasions, but what’s happening here is you’re seeing footage just of me saying things” and that even if it were unprofessional, it should not be thought of by the jury as indicative of how the defendants cared for the patients.
HHJ Smith told the jury that they need to consider the evidence behind Divider 8 with care. That there are limitations on what they can do with it, which he hoped was no more than common sense. He told the jury that firstly, when it comes to a particular episode on the footage, that the jury would need to consider what actually occurred in the footage. He said in some cases there is dispute about the precise words spoken so they’d need to consider what they see on the footage first. He described that as a “classic matter” for a jury to consider, assessing the evidence.
He said, having considered, if they’re not sure of the words said, or if they think the admissions about a particular defendant of past behaviour might be “simply exaggeration or something made up to impress Olivia Davies” then that piece of footage will be of no relevance to their position, so they should strike a line through it.
HHJ Smith then told the jury that they’d need to decide if the particular piece of footage, or combination of piece of footage behind Divider 8, makes it likely that a defendant has a tendency to ill-treat a patient. “That’s entirely up to you, it may be you conclude is some unprofessional behaviour but say so what, how does that help me with the important issues in this case, whether on such a date or time this defendant ill-treated Patient 1”.
HHJ Smith explained that it is only if, the jury are satisfied that there is unprofessional conduct, and, they are satisfied that makes it more likely that a defendant has a tendency to ill-treat a patient, that they could go on and use it as some support for the prosecution case.
He told the jury that in paragraph 22 he had put the words some support in italics and that was for good reason. Common sense would say that you must not convict a defendant on a count on this indictment, wholly or mainly, on material from behind Divider 8. He said that it just would not make sense, and that would allow the prosecution to say give a bad name through this material and then suggest that a defendant is guilty of a count elsewhere. He said to put it in a slang term, you can’t give a dog a bad name, simply by referring to other behaviour. Just because footage in Divider 8 relates to defendant’s behaving in a particular way, or speaking of their own past behaviour, that does not prove that they have done so on other occasions referred to in the indictment.
HHJ Smith said that the evidence in Divider 8 can be used as some support the jury must not convict any defendant wholly, or mainly, on the evidence of what if anything they have found them to have done or said they have done in Divider 8. In summary, don’t get too carried away with how much can be said from behind Divider 8.
Cross-admissibility – linked direction
HHJ Smith then moved on to instruct the jury about material that he said the lawyers would say is cross admissible. He told the jury that this relates to cross admissibility between counts, the separate allegations made in the indictment. He told the jury that he had already instructed them that they must reach separate verdicts on each count, and in respect of each defendant.
HHJ Smith told them that it was “again common sense, you can’t say, must not say, we’ve convicted defendant of one count and therefore they must be guilty on all counts”. He said that they will be going through the route to verdict in respect of each allegation as he’s instructed them, and that they will reach separate verdicts in relation to each count and each defendant.
But, whilst the jury must consider the evidence on each count, and against each defendant separately, HHJ Smith told them, that there is “again to a limited extent, a way in which you can consider where a defendant faces more than one count, and how those counts can, to a limited degree, interrelate, subject to your own conclusions”. He said that the approach would be similar to the Divider 8 material.
When determining guilt or otherwise of any defendant, in respect of any count, the jury are entitled to have regard to a limited degree, to evidence of any other count faced by that defendant. HHJ Smith said that it applies to all defendants except Ms Mahmood, because she is only indicted with a single offence, Count 27.
HHJ Smith told them if, and only if, they come to the conclusion that a particular defendant is guilty of a count they face, once they’ve decided a count, “if you’ve done that, you could then consider whether that proven offence, the one you’re sure about, you could consider whether it shows that they have a tendency to commit an offence of ill-treatment”.
HHJ Smith told the jury that whether a defendant’s guilt on a specific count is capable of establishing a tendency to behaviour in that way, to ill-treat a patient, is a matter for their assessment.
He told them that they may wish to have in mind when they are satisfied and sure a defendant committed one offence, to consider similarities or differences between the proven offence and the one they are next considering, when deciding whether being satisfied about one offence could demonstrate a tendency to ill-treat patients.
HHJ Smith said that the jury may feel the greater the difference, different patients or different kinds of ill-treatment so far as the prosecution are concerned, the less likely it is that the proven offence demonstrates a general tendency to ill-treat a patient.
He said that if there were substantial differences between counts, and the jury were not confident that there was a tendency to ill-treat, that in those circumstances their conclusion to the earlier offence, would not assist them in considering any other count faced by the defendant.
HHJ Smith said if after they’ve done a careful analysis they are sure that the defendant does have a tendency to ill-treat persons in their care then they can take that into account when considering if the defendant is guilty of any other counts they face.
HHJ Smith also told the jury to “bear in mind, even if a person does have a tendency to ill-treat a person in their care, it does not follow that they are bound to do so”.
He told them that any tendency to ill-treat a person that they may find to exist in a person’s case is only part of the evidence against the defendant on a particular count. The jury were instructed that they must not convict any defendant, wholly or mainly, on the strength of it.
HHJ Smith asked the jury to imagine, as a “simple illustration”, the example of “two counts of burglary on an indictment. Imagine you are told that this person has burgled in the past, in fact they have a previous conviction for burglary, and you are sure that they did Count 1, that on itself is no basis to convict them of Count 2, it might be some support, but you need more than that”.
HHJ Smith said that he had two more directions contained within the document, that he would go through later on next week, but that these today was what they would need to have in mind as they listened with care to the speeches of counsel.