The cost of CQC’s carelessness and incompetence; letting Dimensions off the hook

[Summary version: How Sally Lewis was failed, neglectfully, by Dimensions, Julie Campbell, Julie McGirr and all of those so called Support Workers responsible for providing her basic care. And how Sally was failed again by CQC].

Earlier this week Sally Lewis’s inquest concluded, with the coroner finding that her death was contributed to by the neglect of Dimensions UK.

Sally died as a result of faecal impaction, caused by chronic constipation. For the ten months prior to her death the medication prescribed to treat her constipation, on an as required basis, had not been given to her.

This was because there was no regime in place to record and monitor Sally’s bowel movements in order for the staff looking after her to judge whether to administer the medication.

Sally’s death was contributed to by neglect.

You can read David Reid’s summing up and conclusion here, but for now I want to share what happened in the attempted CQC prosecution of her care provider, Dimensions, and the registered manager, Julie Campbell.

CQC boldly state on their website that:

Everybody has the right to receive safe, high-quality care. If we find that care has fallen short of this, we use our powers to take action against those responsible.

I wish I believed that.

Records published by CQC on the prosecutions they have successfully brought since 7 May 2009 up until 5 April 2023, a period of 14 years, show that they have had 88 successful prosecutions, incorporating 178 different charges. Have a guess how many related to harm or death of someone with a learning disability.

Just one.

Which related to the death of Kevin McNally. He was 62 when he died in April 2015, having lived in Smithies Moor Lane, for 3 years before he died.

Kevin McNally, who had Down’s syndrome, epilepsy, dementia and a severe learning disability, had lived in the nursing home since 2012.

In April 2015 two care workers had gone to Mr McNally’s bedroom to help him take a shower using a shower commode chair. The shower chair fell forwards while he was loosely strapped in. Staff attempted to resuscitate him, but he was pronounced dead in hospital.

One charge out of 178.

If it wasn’t due to their incompetence they had a chance of adding to that tally last year, but their carelessness meant that proceedings relating to the death of Sally Lewis were quashed due to a timescale technicality. Let me explain further. I’m going to try to write this chronologically.

October 2017

Sally Lewis died on 27 October 2017. She was just 55. She had a long standing issue with constipation that her carers and their managers knew, or should have known, about. Yet despite this she died what must have been an unbearably painful death (albeit no certain evidence could be offered on that), unseen, sat bolt upright on a sofa in the lounge of the Dimension’s Supported Living service where she’d been moved to 18 months earlier.

The same day Sally died, Dimensions notified the CQC of her unexpected death, albeit we heard in court that they did not indicate any concerns relating to medication. Which seems surprising given Sally had a missed dose of one of her constipation medications 4 days before her death, and, she’d not been given another medication for 10 months. We also heard in court that Julie Campbell, Operations Director, was present at The Dock when Sally’s sister Julie arrived that day. Given we were told The Dock were an early pilot for the electronic records system at Dimensions, and were fully electronic from the start of 2017, surely it would have been possible for Ms Campbell to instantly see, before anyone notified CQC, that there were issues with the medication given to Sally – the missed dose 4 days before her death, the missed dose for 10 months before her death, and the almost empty bowel charts.

CQC Death Notification Form as per Oct 2020

Sally’s post mortem was conducted on the 31 October 2017, flagging within a week of her death that Sally’s death was due to constipation, which can never be understood as anything but a preventable cause of death. Constipation.

November 2017

Concerned that other people in Dimensions care were at risk, following a conversation between the initial CQC inspector and her manager, it was decided that CQC would investigate six Dimension’s services. Those inspections took place a month after Sally died, but did not include The Dock, because CQC were aware that the Worcestershire County Council Safeguarding Team were investigating.

January 2018

Sally died in October 2017, and by 25 January 2018, when I was reporting from Richard Handley’s inquest, Steve Scown, the then CEO of Dimensions blogged on their website, Why we must talk about constipation. In that blog Steve said that the coroner did not require an inquest, which is the first red flag, clearly Dimensions were not pushing the coroner to hold an inquest, it took Sally’s sister Julie, to ask three times, and an eventual change of coroner for the inquest to even happen. Why would an organisation such as Dimensions, a charitable supposed specialist provider, not want to do everything in their power to understand the circumstances of Sally’s death, if not for her family, for the safety of other people in their care?

Steve also said that Dimension’s had conducted their own internal investigation and learnt lessons. This is what he said about the circumstances of Sally’s death.

She was a relatively independent person and would use the bathroom unsupported. There were no bowel charts or Bristol stool charts on her bathroom wall, as perhaps there might have been in the past, and rightly so.

She had taken laxatives for many years, apparently with no ill effect. She was supported by long term staff who knew her well and who I am in no doubt cared deeply for her.

Looking back, there may have been signs that we missed. For example, it seems we didn’t connect her occasional challenging behaviour to constipation. In the days leading up to her death her constipation didn’t seem to be affecting her. 

We heard in court last week that Dimensions knew by the time Ms Hubbocks started her ‘investigation’ that Sally’s post mortem findings had found she died from 1a) large bowel obstruction, due to 1b) faecal impaction.

We heard in court last week Dimensions knew, even from their half hearted internal review conducted by Deborah Hubbocks who said she’d not scrutinised what staff told her, just accepted it, a lot more. Despite the performative scrutiny of the internal investigation there was still a lot more that Steve Scown and Dimensions knew in January 2018, from their own investigations, when he wrote this post. Here’s what he didn’t say:

  • They knew Sally’s cause of death from the post mortem, and they therefore knew it was preventable
  • They knew staff had failed to give Sally her as required Laxido medication for 10 months before she died, not one dose in the 300 days Sally lived in 2017
  • They knew staff had failed to give Sally her Senna medication, prescribed to be given twice weekly, 4 days before she died
  • They knew, not just that there were no bowel charts stuck to Sally’s bathroom walls, but that there had been only 3 bowel movements recorded in the electronic bowel charts since the start of 2017
  • They knew that staff had not been conducting regular audits, and
  • They knew that managers had not been auditing either.

They knew an awful lot more than staff mistaking Sally being poorly for having a gastric bug.

Dimensions knew Sally had died from constipation, a wholly preventable cause of death. They knew the seriousness of the failings they’d identified had directly caused Sally’s death, yet they sought to defend and deny it. And they sought to defend and deny it for the five years that followed, and were trying to defend and deny most of it as recently as last week.

Also by January 2018, Dimensions knew Sally’s sister Julie had complained to Worcestershire County Council, who commissioned Sally’s care, and that they in turn had opened a Safeguarding Enquiry into the circumstances of Sally’s death, and had put a hold on new referrals to The Dock, pending remedial work between the council’s quality assurance and commissioning team and Dimensions.

On 31 January 2018 Worcestershire County Council formerly wrote a letter to CQC regarding their safeguarding enquiry, although Ms Wall conceded in court that there were likely informal communications about that much earlier, possibly as early as the month after Sally’s death.

October 2018

The Safeguarding Enquiry concluded in October 2018, a year after Sally’s death, and it found numerous failings in the care provided by Dimensions. It found:

  • Sally’s constipation was not mentioned in her Continence Support Plan or in her Health Support Plan
  • There was no PRN protocol in place to explain clearly when and how PRN medication should be used, and what to do if it didn’t work
  • Staff did not recognise Sally’s health had deteriorated despite it being recorded in her Mobility Support Plan that she would become unsteady on her feet when unwell
  • Sally’s Health Action Plan recorded her constipation, but did not correlate into her Support Plan that staff relied upon on a daily basis (the one which staff and managers weren’t auditing)
  • Staff did not administer Laxido to Sally from December 2016 until her death in October 2017.

Julie Harris who conducted the Safeguarding Enquiry said that the lack of recording and monitoring of Sally’s bowel movements, and the lack of action when she passed Type 1 stools, which would have caused her significant discomfort, concerned her.

Ms Harris also said that she’d “have expected the provider to have informed us”, thats for Dimensions to have informed Worcestershire Safeguarding Adults Team about Sally’s death, but she could find no record of that.

If Julie, Sally’s sister, had not persisted, with her requests for an inquest, and her complaints to the Council, who’s to know if there would ever have been any safeguarding investigation. It appears that Dimensions certainly weren’t actively seeking to use all avenues open to them to understand what was behind Sally’s premature and unexpected death. Why not?

Summer 2019

Susan Wall, the CQC Inspector who gave evidence to the coroner, took up her current post in May or June 2019. She told the court that she started information gathering in August 2019 after having received a bundle from the Coroner’s Court. She said on receiving the bundle of information she spoke with her manager and it was decided that more information needed to be gathered. She requested information from multiple places, including Dimensions, and that information was provided by those places, including Dimensions.

November 2019

CQC hold a meeting to consider the information that they have gathered, and a decision is made to open an investigation into Sally’s death.

Two years after Sally died. The Coroner sought to understand why there had been a two year delay before CQC even opened an investigation. Ms Wall couldn’t explain it. She suggested the focus had been on ensuring other people in Dimensions care were safe.

C: Alright. Can I ask, why it took 2 years, before the CQC considered whether an investigation should be started with a view to criminal proceedings? You were notified of Sally’s death, two years earlier in November 2017.

SW: We were notified definitely in November 2017. I can’t confirm why nothing further was triggered in relation to Sally specifically at that point, I think the focus was very much on seeing whether risks had been mitigated at that point.

October 2020

Ms Wall told the coroner that from memory the decision to prosecute Dimensions and Julie Campbell was made on the 15 October 2020, with papers being put before the court four days later on 19 October.

March 2021

I attended my first hearing at Kidderminster Magistrates Court (attending remotely) in relation to this prosecution in March 2021. Mr Hassall KC (QC at that time) was in court for Dimensions and Julie Campbell, Mr Donoghue was representing the CQC. District Judge Strongman was sitting. I have been very anxious about what I can report from those hearings, but understand now that the prosecution has been disposed of, and CQC’s appeal in relation to that has been heard (and was unsuccessful) that there are no longer active proceedings so I can not be in Contempt of Court for reporting what we heard in court (providing of course I do so fairly and accurately, which I always endeavour to do).

In the March hearing we learnt that when the CQC had submitted their initial application for summons, we were told on the 16 October 2020, all of the required information had not been provided, in line with The Criminal Procedure Rules 2020, Part 7.2 3 (b)(i)

(3) An application for the issue of a summons or warrant must—

(a)set out the allegation or allegations made by the applicant in terms that comply with rule 7.3(1) (Allegation of offence in application or charge); and


(i)that the application is made in time, if legislation imposes a time limit, and

(ii)that the applicant has the necessary consent, if legislation requires it.

We heard that a letter was sent to the court to “remedy that non-compliance” in February 2021. The judge wished to know when the prosecutor, in this case CQC, were of the view that sufficient evidence existed to prosecute. He said that he still didn’t know whether matters were brought within twelve months of the authority, CQC, coming to that view. Mr Donoghue said that he’d need to take further instructions on that, adding that there were several internal meetings, and consideration between lawyers at CQC and their operational teams who make prosecution decisions.

There was then a discussion of previous legal decisions and a number of authorities. It will take a more legally educated mind with better notes than mine to report those arguments, but I can tell you that Mr Donoghue was arguing that the situation here was distinct from the Food Standards Agency v Bakers of Nailsea case and he was inviting the judge to rely instead on the case of Mohamed v LB of Waltham Forest case.

CQC suggested to the court that their original non-compliance was remedied by the later provision of additional information in February 2021. Mr Hassall did not accept that and said that there had been no attempt from CQC to demonstrate that they had brought the case in time.

Dimensions UK Ltd and Ms Campbell were both facing a charge brought under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 of failing to provide safe care and treatment for a person in their care. The offence was alleged to have taken place on or before 27 October 2017 [the date of Sally’s death].

The rules about time limits for prosecution in the Social Care Act 2008 are found in Section 90 (2) and they state:

Proceedings for a Part 1 offence may be brought within a period of 12 months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge; but no such proceedings are to be brought by virtue of this subsection more than 3 years after the commission of the offence.

Sally died in October 2017 so the clock started ticking then. As I understand it, CQC had to demonstrate to the court that they, the prosecutor, knew that they would be prosecuting no more than 12 months before the date of their application, which was the summons application in October 2020.

CQC weren’t arguing that they failed to provide sufficient information in their summons application, but they said that they rectified that in the letter of February 2021. As I understood from what we heard in court that February 2021 letter did not state when the decision to prosecute was made, it simply asserted that it was made in time. I’m not sure what’s going on here, arrogance perhaps, or maybe more likely incompetence of CQC. Anyhow, a further hearing was set to decide whether the failure to provide the information required at the time of the summons, meant that the case should be dismissed.

July 2021

In July 2021 we were back at Kidderminster Magistrates Court in front of DJ Strongman (most people attending remotely). By this stage Julie Campbell was represented by her own QC, Mr Kay, and CQC had also engaged the services of a QC, Mr Greaney.

At this hearing, and in the skeleton arguments distributed in advance, Mr Hassall made an application for declarations that the information CQC had laid before the court 1) failed to comply with the Criminal Procedure Rules and that therefore 2) the summonses issued relying on that information were invalid and consequently 3) that the Court therefore did not have jurisdiction to try them.

Mr Hassall quoted from the aforementioned Bakers of Nailsea case to explain the importance of time limits:

It is worth noting that the setting of time limits for the prosecution of offences is designed to have two important consequences:

first, to provide protection to the citizen who may have committed a criminal offence and,

secondly, to bring about, in the authority having responsibility for the prosecution, an efficient and timely investigation of the offence

and again that:

An ordinary and natural interpretation of the language of the rule is that there must at least be a reference to the applicable time limit, otherwise it is not “demonstrated” that the application is made in time. The need for such a reference is supported by the fact that not all offences are subject to a legislative time limit. An application that is silent on the question of time limit could be apt to mislead

Mr Hassall told the court:

It is not apparent on the face of these applications that they were made within a period of 12 months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. The applications were made considerably longer than 12 months after the alleged commission of the offences.

He again relied on Bakers of Nailsea, for his conclusion, and argued that the court should dismiss the proceedings:

In circumstances where there is a complete failure to comply with rule 7.2(3)(b)(i), the applications are to be treated as a nullity and the Magistrates’ Court has no jurisdiction to entertain them.

The prosecution, CQC, accepted in Mr Donoghue’s submissions, that they had not complied with the Criminal Procedure Rules in the initial instance, however, they argued that they had fixed things by later supplying the required information, and so the case should proceed.

The CQC acknowledges that its application in this case did not demonstrate that it was made in time; indeed, it was silent on that issue. Accordingly, in that respect, the application did not comply with the requirements of Rule 7.2(3). The issue that arises is whether the proceedings against the defendants are, for that reason, a nullity.

Their reading of the Bakers of Nailsea case was that it did not deal with this issue in hand.

On established principles a procedural failure such as that which occurred in this case is able to be cured and, in any event does not render the proceedings a nullity. The CQC did cure the defect by its letter of 26th February 2021. The proceedings are therefore regular.

Mr Donoghue introduced the case of R v Ashton and others and said that it established that if no party would suffer prejudice as a result of procedural failures, then a decision had to be made whether the proceedings should be allowed to continue. CQC argued, in this case, that they should.

Where there has been a procedural failure, the modern approach of the Courts is to consider whether Parliament intended that any act following that failure should be invalid and, if the answer to that question is no, consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is no such risk, the court must decide whether it is just to allow the proceedings to continue.

Mr Hassall told the court that the chronology of this case demonstrated, in their submission, that:

CQC has engaged in significant paper pushing or shuffling… manipulated the course of its own investigation to circumnavigate the time limit set out in primary legislation… in effect to write its own time limit… with an adverse effect on defendants in these proceedings, and in another jurisdiction, specifically the inquest in the coroners court into Sally Lewis’s death.

Mr Hassall also submitted that the Criminal Procedure Rule required CQC to demonstrate that their application was made in the statutory time limit, but the CQC’s application had not mentioned the time limit, and there was no attempt by them to demonstrate their compliance with the time limit. He said that despite the prosecutor admitting the breach, no attempt had been made to rectify it until 5 May 2021, which he said was 7 or so months after it had occurred and “three months after the prosecution’s own identification and acknowledgement of its breach in letter sent to court on 26 February this year”.

Mr Hassall told the court that his client “had a statutory duty to notify Sally’s death to CQC, who also happens to be the prosecutor in this case, and did so. Did so on the same day Sally’s death sadly occurred. That is the additional document we sent to the court this morning, that you now have, there’s no need to refer to any particular details of it, save to say that the prosecutor was therefore aware of the circumstances that might warrant investigation and prosecution as early as 27 October 2017”.

This is interesting because we heard in court earlier this week, that when Dimensions notified CQC of Sally’s death, they did not in fact indicate that there was any concern about medication, despite the fact we heard by then they had in place an electronic records system that will have flagged missed medication four days before Sally’s death, missed medication for 10 months before Sally’s death, and incomplete bowel monitoring charts. Mr Hassall might suggest that the court doesn’t need to consider the particulars, but if Susan Wall was correct in her evidence to the coroner on Friday, I think it would be fair to argue that CQC wouldn’t necessarily have had in their possession details that would warrant investigation, because Dimensions notified them that Sally’s death was unexpected, but without any medication concerns. I guess it depends on the degree of scrutiny they extend to unexpected deaths.

Mr Hassall then told the court:

Thereafter sir, over the next three years, and to this date, the defendant participated in and did its best to assist in a number of case reviews, relating to Sally in the months following her death. It did so not knowing whether it might later be prosecuted. Having CQC waiting in the background, at that point during the inquest process, affected the defendant’s ability to participate fully in that process … led on to issues relating to self-incrimination before the coroners court.

What an interesting admission.

Why would Dimensions be concerned about self-incrimination, if it was being open and honest and, as they claimed on their website they thought it was simply a case of Sally having a tummy bug.

Mr Hassall then told the court that CQC’s delay in announcing its prosecution to the defendant, and to the Coroner, has led to the inquest being postponed, in circumstances where has already been postponed before.

Mr Hassall said that they didn’t take issue with the way in which information was provided to the court by CQC, but with the fact that they didn’t seek to demonstrate how decisions were made within the timescale allowed. He referenced an email sent to the court on 5 May 2021 which he said stated showed no demonstration of CQC’s compliance within the time limit.

Mr Hassall said that letter said the CQC held their full code meeting on 15 October 2020 and made an application to the court four days later. He said that CQC were of the view that they were “entitled to say the person we’ve decided to identify as prosecutor was given knowledge of evidence, which we say warrants proceedings, and also decided should be criminal proceedings, on the same day. On the same day, very nearly three years after offence is said to be complete. They say they made their applications within four days of that meeting, so well within the shorter twelve month time limit set out”.

Mr Hassall referenced two other cases for DJ Strongman to consider, the RPFI case (which I assume relates to the prosecution CQC brought after Sophie Bennett died but I’m not sure) and the Winder v Director of Public Prosecutions case.

The case of Winder makes reference to the concept of paper shuffling or paper pushing. In setting out the prosecutor is not entitled simply to sit on evidence or information, and not provide it to a person designated as prosecutor, to arbitrarily extend its own time limit, and that is very clearly what the defence say the CQC has done in this case.

Having been notified of the sad death of a service user, Sally Lewis, in October 2017, it did not provide the evidence, together with other evidence provided along the way until 15 October 2020, very close indeed to the long stop time limit of three years.

Mr Hassall told the court that CQC held its Full Code Test Meeting on 15 October 2020, which he said was “before the defendants had an opportunity to provide answers to questions asked under caution” which he suggested excluded the defendants from any involvement in an interview type process, according to the Police and Criminal Evidence Act 1984.

Mr Hassall said that Dimensions had compiled a significant document that ran to over 6 (??) pages which “involved a huge amount of work by those instructing me” to respond to questions under caution. He said that CQC had invited Dimensions to make submissions relating to the charge against them, and yet CQC had gone ahead and made a decision to charge them, before those submissions were even received. That order and timing of events, said Mr Hassall, demonstrated that the decision meeting of 15 October 2020, “failed to take into account important factors when it made its decision to prosecute”. He said it was analogous to the police seeking to interview a defendant again, even after a decision had already been made to charge them.

Mr Kay QC for Julie Campbell adopted the submissions of Mr Hassall for Dimensions but wished to add a couple of extra points. He said that Rule 7 in the Criminal Procedure Rules put a requirement on the prosecuting authority, in this case CQC, to demonstrate its application is made in time.

“It’s not a target, it’s not a polite request, it’s not optional for CQC, it’s a requirement they face if they wish to proceed proceedings”

Mr Kay pointed out that it was accepted by CQC, in court on the last occasion, and in written documents that they failed to comply with the rule, and that CQC were suggesting their failings should be ignored, because it was in the interests of justice to permit CQC to do so.

On the interest of justice … Julie Campbell is a 56 year old lady of hitherto good character. She was the Operations Director for two entire counties for this organisation, had been in that role for over a decade. Her job was not the day-to-day care of service users, she was responsible for overseeing about 40 homes, housing about 110 people…  beneath her there were 9 Locality Managers responsible for day to day management in their respective areas.

The day-to-day monitoring of Sally Lewis, her medication and bowel movements, that was the job of fully trained managers at the location … Julie Campbell couldn’t carry out those functions for over 100 people, she couldn’t even see them all weekly.

Mr Kay said that this wasn’t simply a case of CQC being out of time, or simply extending a limit of time where everything else was complied with. He said that “they don’t get over the first hurdle, requirements for a summons to be properly issued weren’t complied with”.

Mr Kay told the court, that they would have to be satisfied that it “is in interest of justice to allow [the case] to continue” and that the interests of justice were greater, than the suffering “to Julie Campbell if they’re permitted to do that”. He ended by saying that the defect isn’t simply being out of time, but it was a complete failure to comply with the rules of the court, and he finished “to permit the case to continue would render rule 7.2 completely worthless”.

Mr Greaney started his submissions by reminding the judge that he wasn’t being asked to decide whether proceedings were in fact brought in time, he said that CQC rigorously rejected Mr Hassall’s suggestion that it had manipulated its own processes, but that wasn’t for determination today.

What is for determination, is a hard edged question, whether 7.2.3.b1 on 19 October 2020 renders proceedings a nullity, and whether it does so not withstanding that … was subsequently corrected in correspondence to which reference has been made today.

As you’ll appreciate the decision you make today is likely to be considered by the administrative court by judicial review. Whichever party loses is likely to seek administrative court on issue which goes beyond this case.

Mr Greaney said that the chronology was that Sally Lewis died at accommodation operated by the first defendant, Dimensions, at which the second defendant, Julie Campbell, was the registered manager.

That death was, it’s entirely uncontroversial to say, an entirely dreadful one … failure to provide Sally with safe care and treatment offence, having occurred on 27 October and before … Health and Social Care Act 2008 allows 12 months from the date on which evidence sufficient in the opinion of the prosecutor came to knowledge, within the backstop of three years.

The defendants were each invited to provide their responses to a case letter, and given a date before the full code meeting. For reasons I’m not aware of, which may be good or bad ones, it wasn’t possible for the defendants to provide written responses by that date, and for that reason they were not taken into account at the meeting on 15 October 2020.

Mr Greaney said the Head of Inspection, who is responsible for making a decision, decided at the meeting on 15 October 2020 that there should be a prosecution. He said that Mr Justice Andrew Nicol had given the CQC scheme a “clear bill of health in RPFI” and he stated CQC had twelve months from the 15 October decision to commence a prosecution, subject to the 3 years backstop (which meant it needed to start before 27 October 2020). Mr Greaney said it was important to acknowledge that there would be “extreme consequences if these proceedings are a nullity” adding after some explanation, that “there will be a situation that exists that is little short of chaos”.

Mr Greaney then discussed the authorities already mentioned, arguing why they supported his position. Mr Greaney argued that if insufficient information was provided by a prosector to justify the issue of a summons, subsequent proceedings do not become a nullity, although if sufficient information could never be provided, then the magistrates court could quash the case.

The Judge, in discussing the issue with Mr Greaney stated:

The reality is, if an application to issue a summons is received in the court office, from a recognised authority, the court office will simply rubber stamp it. It might look to see is there a charge there it can put in the summons, so long as there’s enough information to put something meaningful, the court office will issue it.

Then followed a discussion of possible failings and how they could, or whether they should, be rectified. The Judge questioned whether if the fatal error committed was that CQC failed to provide the necessary evidence, they would then be out of time if the case were to be looked at again?

If fatal error was not providing evidence necessary for the court to make a decision on whether to issue a summons, of course we could look again, but you’d be out of time?

Mr Greaney submitted that Ashton was applicable in procedural failure and his reading of it was broader than the judges.

There has been a technical failure, there has been a procedural failure. No prejudice of any sort is caused to the defendants, there is no just reason why they should have the bonanza of avoiding trial, simply because someone failed to say 8 words at the time they applied for summons, and in particular in circumstances where that defect has been put right.

Mr Greaney continued by urging the judge to consider what Parliament had intended when it changed the rules in April 2018, he said there “isn’t the merest hint breach of this rule should render proceedings a nullity” and told the judge if he considered the interests of justice, there is only one answer, that there is no true prejudice to these defendants in the trial taking place, and that there would be significant prejudice to the prosecution in saying they’re a nullity, so there can never be consideration of allegations these defendants face.

Mr Hassall, in response, added a number of comments on the issue of interests of justice and made the following submission:

Justice can be achieved in any number of ways, learning from mistakes … the issuing of public apologies, all of those things can be achieved in this case in relation to Sally Lewis’s very sad death without recourse to prosecution. Many of those things have already been achieved. Choosing so late in the day to prosecute these defendants have already led to delays in justice … delays in coronial proceedings … prosecution as a means of achieving justice is about as blunt an instrument as exists … what said by CQC is justice can only be achieved for Sally Lewis by Dimensions paying a fine to the Treasury, in circumstances here regulators has delayed by nearly 3 years bringing proceedings, breached procedural rules and delayed further in attempts to rectify its breach … if you get to interests of justice argument, we ask you to take into account in resolving that issue, as you know our principle position is the interests of justice are not engaged in this case, the proceedings are simply a nullity.

Mr Kay agreed with Mr Hassall’s points, adding that any chaos flows from the failure of the CQC to follow simple steps.

In relation to proceeding against Ms Campbell, CQC invited her comments as far as submissions on her case were concerned, those weren’t requested I think until 2 years and 10.5 months after the offence … invitation in early September 2020, given a deadline of 29 September. She instructed solicitors by 10 September, this was during the pandemic, they received in excess of 5000 pages, to consider within two weeks of instruction… simply couldn’t be done.

Mr Kay submitted that it simply wasn’t possible for Ms Campbell to provide a full case response in the deadline of response, prior to the 15 October meeting. Mr Kay also submitted that there seemed to be a habitual problem with CQC failing to follow simple rules.

With respect, to say that it is quaint to expect a prosecuting authority in CQC’s position to comply with rules such as this, is in my submission breath taking and perhaps explains why they’re in this position once again. It’s not a one off, seems to be a habitual problem where they fail to comply with simple rules.

At the end of that hearing District Judge Strongman said that he would endeavour to hand down his judgement on 5 August.

August 2021

The judge kept his promised and handed down his judgement about whether the case should proceed, on 5 August 2021. In his judgement he summarised matters:

The CQC concedes that it failed to comply with rule 7.2(3)(b) at the time of the application. The matter first came before me on 29 March 2021. By that time the defendants had raised the issue of non-compliance with the rules with the CQC. On 26 February 2021, the CQC wrote to the defence asserting that the application for a summons was made in time. The letter did not indicate the date on which it was said the prosecutor was of the relevant opinion. A further communication from the CQC by email on 5 May 2021 asserted that the prosecutor came to be of that opinion on 15 October 2020. It is agreed by the parties that the information contained in that email satisfies the requirements of rule 7.2(3)(b), albeit out of time. Whether the proceedings were in fact brought in time, remains an issue. A preliminary issue is now raised by the defence. It is argued that the prosecution’s failure to comply with rule 7.2(3)(b) when the application to issue a summons was made, renders these proceedings a nullity.

He also said that some criticism had been made of the way in which CQC had decided to prosecute.

Some criticism is also made of the CQC in the way in which a decision to prosecute was made. It is said that by a creative movement of the case papers between personnel they have artificially extended the time for bringing a prosecution and, furthermore, that the defendants were not afforded a proper opportunity to respond in the equivalent of an interview under caution before any decision to prosecute was made. However, those issues are not relevant to the decision I am being invited to make on the question of nullity.

As Mr Greaney helpfully pointed out, whether the proceedings were in fact in time and whether there was an abuse of process are not matters in issue for the purpose of this hearing.

Moreover, it seems to me that should the defence wish to argue that the prosecution has acted improperly and that the proceedings are an abuse of process, since that goes to the issue of whether the defendants should be tried rather than whether the defendants can have a fair trial, that is a matter that may only be considered by the Administrative Court and cannot be argued before this court.

The judge explained how he’d considered the relevant authorities (this is already way too long, I’ll not report it here) before deciding against the defendants, Dimensions and Julie Campbell, and deciding that the case had to go ahead.

I find that, whilst there was a failure by the prosecution on application for the summonses to provide the material necessary to demonstrate that the informations were in time as required by rule 7.2(3)(b), the resulting summonses are valid and the proceedings are not rendered a nullity.

His final concluding paragraph stated:

In conclusion, I reject the submission of the defence that the proceedings are a nullity. It is now clear from the statement issued by the prosecution that the informations were prima facie laid in time. Pleas will now need to be taken and the case must progress in the usual way. I do not propose to delay these proceeding pending any possible appeal, unless directed to do so by another court.

September 2021

The next hearing, the plea hearing, took place on the 3 September 2021. My report at the time is below.

At this hearing we heard from Mr Kay, on this occasion representing Dimensions and Julie Campbell, that having received the August judgement, the defendants would be applying for a judicial review. He suggested that parties had agreed the proper approach in the circumstances would be to adjourn these proceedings. The judge didn’t agree, stating that this was an old case and he saw no reason why it shouldn’t carry on.

Mr Kay tried to persuade the judge to adjourn, arguing that if he proceeded and the judicial review subsequently stated that the proceedings should be a nullity then the defendants were prejudiced against. The judge again disagreed, stating he was against both parties in this, and refusing to adjourn the case and stating he’d proceed to take pleas.

Mr Kay said that both defendants were in the same position, neither would given an indication as to plea at this stage, so each would be treated as having entered a not guilty plea.

District Judge Strongman said that he would be happy to comply with any directions of the Administrative Court. In the meantime he said he’d schedule the next hearing for w/c 20 September.

The next hearing took place on 23 September and the judge started by thanking whoever had sent him the judicial review application and stating that one of the questions to be raised was about whether applications were laid in time and there seemed to be a difference of opinion about whether his August judgement had dealt with that. He said he’d issue a supplemental judgement to make it clear. He said that the only matter argued fully before him had been whether it was a failure of the prosecution to provide information, that the defence had intimated concerns that paper shuffled artificially would be an abuse of process, but that he had not heard any evidence or argument on that point.

I did not rule information were in fact laid in time … defendant not prejudiced by failure to comply with 7.2, because the issue of whether laid in time may be raised at a later stage.

The judge said that he’d make a ruling on merits accordingly, should the defence wish to argue contrary to information provided by the prosecution, that not laid in time, but he had not yet determined that issue.

At this hearing Mr Kay said that Ms Campbell would make no indication of plea at this stage and she understood that meant she must be treated as not guilty. Mr Kay said that CQC were asking for six weeks to serve their case. The judge seemed surprised that papers had not already been served, Ms Stephenson who was representing CQC, said she believed that there were four statement outstanding.

Mr Kay said that he’d only seen 8 of the 14 prosecution statements so he believed there to be 6 witness statements and related exhibits outstanding “so half the evidence yet to be served so I can’t begin to give you a time estimate for the case”.

Asked why the prosecution needed six weeks Ms Stephenson said she was afraid she had no instruction on that, she was standing in.

Judge: Why do the prosecution need 6 weeks?

JS: I’m afraid I don’t have instruction on that, I’m standing in

Judge: Why aren’t they ready now? This is an old case. You can have a fortnight to serve papers, I can’t have a meaningful case management hearing until all papers are served. Will take to 7 October. The defence can have a fortnight or so to chew over any new material. Case management hearing on 28 October, how does that fit with people’s diaries? Do I take from the silence that 28 October is convenient to you all?

Turns out that date wasn’t convenient to anyone and a timetabling discussion followed. The next case management hearing was listed for November, with the likelihood of trial in January 2022.

November 2021

On 2 November I emailed the court requesting permission to attend remotely the hearing tabled for the following morning. I also rang the court but couldn’t get through to anyone. On 4 November I received permission to attend (the hearing the day before) and all future hearings. I consequently can’t tell you what happened at the November hearing, but I was told the next hearing had been set for 25 February 2022.

February 2022

There was some confusion at this hearing. Three witnesses were in attendance to give evidence in relation to the application (which I believe to be the application to stay proceedings). The judge said he didn’t have time for a substantive hearing and thought it was only in for further directions. Court was adjourned for a two day hearing the following month.

March 2022

On 24 March 2022 I was back in court, joining remotely. All counsel were present in court, and we were back to Mr Donoghue for CQC, Mr Hassall for Dimensions and Mr Kay for Julie Campbell.

Since his first judgement, where the Judge ruled that proceedings could proceed, the law had been clarified in the Administrative Court with the case of Mansfield v DPP and now it is clear that the Magistrates’ Court can and ought to entertain any such application, to stay proceedings as an abuse of process on the grounds that it was unfair to try the defendant.

The points now pursued by the Defendants may be summarised as follows:

a) the CQC has engaged in “paper shuffling” to extend, artificially, the limitation period and that it was in possession of all the material evidence on which to make a decision to prosecute for more than 12 months prior to the application for a summons being made, such that the application for a summons was out of time

b) the CQC’s decision to prosecute made on 15 October 2020, although described by the CQC as a final full code test was, in fact, only a preliminary one, because there were outstanding enquiries and evidence and the application for summonses made on 19 October 2020 was therefore premature and an abuse of process

c) the CQC reneged on its assurance that any decision whether to prosecute would only be made once the Defendants had had an opportunity to respond to the allegations or had been interviewed. 

It was for the prosecution, the CQC, to show to the criminal standard of proof (that is beyond reasonable doubt) that the prosecution is brought in time. It was for the defendants, Dimensions and Julie Campbell, to prove, to the civil standard of proof (on the balance of probabilities) that the circumstances are such that it would be an abuse of power for the case to proceed.

At this hearing evidence was heard from three witnesses, to enable the judge to make findings of fact. They were:

  1. Susan Wall, CQC Inspector now responsible for Dimensions
  2. Deanna Westwood, at the time Head of Intelligence, Change and Improvement for CQC, at the time of the decision she was Head of Inspection for Central East Midlands
  3. Amanda Linden, CQC Head of Inspection for West Midlands

Mr Donoghue took Susan Wall through the CQC process of evidence gathering, and decision making about whether to bring a prosecution. Asked if CQC could prosecute someone on the back of the Safeguarding Enquiry failings, identified in October 2018, Ms Wall told the court that they couldn’t at that point, they “would need sufficient suspicion” and a decision was made to start an investigation.

She said November 2019 was a significant point.

At that stage we still weren’t at stage where could decide whether fully … we were gathering evidence to see whether suspicions were right.

She said when the first bundle had arrived from the coroners court in August 2019 it contained the post mortem report, GP records, the Safeguarding Enquiry, bowel charts, and Dimensions’ own internal investigation report. She said they’d not seen the post mortem and bowel charts before. On 20 August 2019 CQC requested Sally’s care records from Dimensions, they were sent on 28 August, with a slight amendment made on 5 September 2019.

Mr Donoghue asked about the importance of care records in the CQC’s decision.

Crucial, it’s the way we know whether risks were managed properly, other things we look at, statements, things like that … from our point of view that started to reinforce our concerns that Ms Lewis hadn’t been cared for appropriately.

Ms Wall was asked what information became available in August and September 2019.

  • 27 August: Worcestershire County Council provided a combined care plan
  • 24 September: Worcestershire CC emailed to confirm the hours of care Sally was receiving
  • September: Further bundle from the coroner
  • 25 October: Police case summary with notification not for prosecution

Asked if any of that was new material Ms Wall responded that the “vast majority of it was new information”, that the police reports were new and whilst there might be some duplication between the coroner’s bundles, anything new in them was new to them.

Ms Wall told the court there had been around 16 management review meetings, on an ad hoc basis, because CQC were receiving information on an ad hoc basis.

In January 2020 a further bundle was received from the coroner’s court, with further staff witness statements and statements from Sally’s family members, some of which had been in previous bundles, some had not. Mr Donoghue said that bundle also included the Laxido stock check records and medication audits, which hadn’t been shared with CQC before. He asked how they’d assist.

Laxido stock records important because had been absence of medication administration records; usual they’re stored quite securely, they’re quite important documents, don’t have full records in Ms Lewis’s case the registered provider weren’t able to furnish us with those, so stock checks important would give indication of what if any Laxido had been administered to her and how frequently.

In June and July 2020 CQC received further bundles from the coroner’s office, asked if they contained any new information, Ms Wall told the court that there were “couple of staff statements that indicated training and information wasn’t always consistently provided to staff” and a report for the coroner which talked specifically about the adverses effect and increased risk to Sally of not receiving her laxative medications.

Ms Wall told the court that the CQC Inspector would work with Evidence Review Officers and Legal Colleagues internally, because they’re quite close to the evidence trail, to formulate questions in invitations to provide representations. She wrote to Julie Campbell and Dimensions on 1 September 2020 notifying them of CQC’s concerns and inviting them to provide representations by 29 September. Written representations weren’t received but solicitors representing Dimensions requested an extension, which was granted until 14 October. Ms Wall told the court that Dimensions were informed CQC would be sticking to their original timetable, of making a decision on 15 October 2020, but would “naturally review anything that came in after that date as part of due diligence”.

Ms Wall, in response to questions from Mr Donoghue, said that Dimensions had been told by the CQCs legal advisors that a decision would be made on 15 October. Dimensions sent a response to CQC that arrived on 23 October 2020, but without any attachments attached, they were sent later. No response was received from Julie Campbell until November, said Ms Wall.

Ms Wall said that the decision to prosecute was made at the Full Code Test Meeting on 15 October. There were further management review meetings held on 4 and 6 November to consider the responses from Dimensions, and one on the 24 November to consider Ms Campbell’s response which was provided on 16 November. She said that those subsequent meetings weren’t full test meetings and that they’d have convened another “if there was anything in there that changed our decisions of the earlier meeting. Decision made, having reviewed evidence wasn’t anything that made a material difference to our decision to prosecute”.

In cross examination by Mr Hassall for Dimensions, Ms Wall was asked if CQC had asked a single question of anyone in relation to Sally’s death following the Safeguarding Enquiry findings in October 2018 and before Ms Wall took over in June 2019.

CH: CQC were notified of her death on same day it took place and you’re unable to identify for us any action taken by the CQC to investigate the circumstances of her death between the date of her death, and when you took over inspection of Dimensions in June 2019?

SW: That’s correct, again my colleague who was the Inspector of that service might be able to provide more information on that. What I can say is clearly there was discussion with inspection managers at time in relation to risks to others, and the primary focus until we received something, in terms of post mortem, medical records and responses for requests for medication records.

CH: You’ve referred a number of times to your colleague, the previous inspector, it’s not proposed as I understand it that the previous inspector is going to give any evidence to this court about what was going on in between October 2017 and June 2019, so is there anything else you can tell us, beyond … about what was actually going on in that period of time?

SW: I can’t tell you anything other than what’s already in my statement and what I’ve said today.

Mr Hassall then asked a number of further questions about the process before asking if the CQC continued to gather evidence after the full code meeting had taken place. Ms Wall agreed they had, including expert reports that arrived in December 2020 and were reviewed in January and February 2021. In response to questions from Mr Hassall, Ms Wall explained that a CAPP [?] meeting took place in November 2019. This meeting was a review to consider public interest issues and decide whether it was in the public interest to proceed with a prosecution.

[I’ve got another 50 pages of notes from this hearing but I’ve been trying to write this for two days and three nights now and I really want to get it done, so I’m going to jump to the judgement made by District Judge Strongman having heard evidence from the 3 CQC witnesses].

April 2022

The judge handed down his judgement at a hearing on 7 April 2022, following the one day hearing on 24 March 2022. He set out some of the background and then said he needed to find facts.

It is disappointing that none of the witnesses was able properly to describe the protocol adopted by the CQC for investigating suspected criminal behaviour. The allocated inspector is responsible for routine inspection and monitoring compliance with regulations. The same inspector also investigates criminal offences. Any enquiry into the death of a service user is, in the first instance, a broad one to see whether the standard of care was lacking and whether any lessons may be learned to prevent any further mishaps. If, during the enquiry, the inspector takes the view that a criminal offence may have been committed, then, as I understand it from the confused evidence I received, the inspector refers the case to a CAPP panel (no one was sure what the acronym stands for) and that panel considers whether it warrants a criminal investigation and whether it is in the public interest to pursue it. If the panel is satisfied that a criminal investigation is warranted, the inspector is authorised to commence one. Ms Wall said in evidence that the CAPP panel was held in November 2019. 

With regards to management review of the process within CQC he said:

Inspectors have regular management review meetings. These may be with evidence gathering managers or internal lawyers or both to discuss the progress of the case from time to time and to agree on a plan of action to progress the case. Frequently the local Head of Inspection will attend to keep an overview. Some potential prosecutions with less merit are sifted out during this progress. Eventually there comes a point at a management review meeting that the participants agree that the case is ready for referral to the Head of Inspection for a full code meeting to decide whether charges should be brought. 

The judge said that “The only person who has power to authorise a prosecution is the Head of Inspection. A full code meeting is arranged, normally by the inspector”. He described the process in more detail, including the defendants being given an opportunity to respond to questions in writing. He said a full code meeting took place on 15 October 2020.

In the event, Ms Lyndon, who held the post at that time, was away, probably on annual leave, and Ms Westwood from the neighbouring region covered for her and fulfilled the role of Head of Investigation. Ms Wall also attended the meeting as the investigating officer. Minutes were made of that meeting, but none were made available to me, even in a redacted form, and none of the witnesses took the opportunity before or during their evidence to refresh their memories from them. 

I remember sitting in that March 2022 hearing feeling so annoyed at those giving evidence from CQC. In a fit of generosity at the time I put it down to authenticity, and felt it was right and proper that CQC hadn’t coached their witnesses, but as time went on it felt more like carelessness, and an ambivalence or arrogance to the process. Why didn’t they know their own process, what the acronyms stood for, what happened in the full code meeting in detail?

There was then some confusion about expert evidence that CQC had commissioned to help their prosecution. The judge and Mr Hassall (and my own note) only makes reference to expert evidence from Prof Gilmore (who also provided a report for the coroner). Mr Donoghue thought that the expert report awaited at the time of the full code meeting was from a learning disability expert Dr Camden-Smith.

However, in the context of this case, in my view it does not matter which report was outstanding, or indeed, whether it was, in fact, both reports. Ms Wall made it clear in her evidence that the expert evidence on this topic had been provided for the coroner, rather than for the CQC, and the purpose of instructing the expert was to ensure that there was an independent look at the case to see that the basis on which the CQC sought to bring the prosecution was scientifically sound. She added that if the report came back suggesting that they were wrong, then the CQC would drop the prosecution, but they were hoping it would support their case. 

At the date of the full code meeting on 15 October 2020, the PACE responses from the Defendants had not been received. They had been given further extensions beyond the date of the meeting, but the CQC had also indicated that the decision whether to prosecute Dimensions would still be made in line with the existing timetable of no earlier than 15 October. Dimensions provided its response to the questions on 23 October 2020 and appendices on 26 October 2020. Ms Campbell’s responses were provided on the morning of 16 November 2020. On 16 November 2020, the CQC wrote to Dimensions stating, “Having considered the evidence in this case, including your client’s detailed submissions and attachments, the decision has been made that the evidential threshold for proceeding is met.” Mr Hassall, on behalf of Dimensions, points out with some force that this demonstrates that, notwithstanding the prosecution’s assertion that a final decision to prosecute was made on 15 October 2020, the decision was made at some later date in November 2020, after the receipt of the responses from Dimensions. The letter was, after all, written by the CQC’s legal department who ought to know the date of the final full code decision and the significance of it in the context of this case. 

What a total mess, just chaotic, sloppy, careless processes from CQC. After the chaotic, sloppy, careless processes from Dimensions and Julie Campbell that led to Sally’s death in the first place.

This is what the judge ruled with regard to the timescale and processes of decisions by CQC in the prosecution relating to Sally’s death.

It is clear to me that on 15 October 2020 the investigation by the CQC was not complete. The expectation would be that, prior to the CQC making any decision whether to prosecute, the suspects would be offered a proper opportunity to be interviewed under caution or to provide responses to raise any potential defence or otherwise challenge the CQC’s evidence, or to put forward any mitigation which might influence the prosecution on the interests of justice test. It seems to me that, the more complex and serious the allegations, the greater the need for that opportunity to be offered. Allowing four weeks for the defendants to respond was unrealistic and the CQC properly granted the request of each of the defendants for an extension of the period to respond. Moreover, it is clear that the expert report commissioned from the learning disability specialist was more than just ‘the icing on the cake’ and was a key piece of evidence in this enquiry. 

Mr Donoghue, for the CQC, argues that I cannot go behind the evidence of the witnesses called who all agree that the decision made on 15 October 2020 at the full code meeting was a final one. I disagree. I am entitled to look at the case as a whole and make proper inferences to determine, however the witnesses describe it, whether it was a truly a final decision or, as the Defendants suggest, premature or provisional. 

The case was clearly not ready for a full code test, with the expert report from the learning disability specialist report outstanding and the time allowed for the defendants to respond to questions not having expired. The reality was that, unless the Head of Inspection authorised a prosecution at that meeting, it would be time barred. The only proper inference I can draw from the evidence is either that, notwithstanding the assertion that the decision was final, it was, nevertheless, only a preliminary one, subject to any defendant’s PACE response and the report of the learning disability specialist, both of which were due at a later date, or that the CQC pressed on, because of the imminent limitation date, to make a decision which purported to be final, despite the investigation having not concluded, in circumstances which, in my view, could not be justified and was clearly premature and improper. 

The judge said that since Ms Wall didn’t form a view until Summer 2020 that criminal offences may have been committed, no decision could have been made prior to that date.

It follows that no amount of paper shuffling could have extended the 12 months’ limitation period in any event, since the three years’ limitation was due to expire in less than three months’ time, in October 2020. 

For sake of completeness, I do not find any paper shuffling took place in this case. It might be fairly and properly said that, had the CQC been more proactive, it would have realised long before the summer of 2020 that there was evidence suggesting that a criminal offence had been committed. However, there is no evidence that the case was passed between officials artificially to create more time. 

If I was feeling super acerbic and frustrated with the carelessness of it all, I’d maybe suggest that CQC are too incompetent to even paper shuffle.

The judge found that the decision made to commence proceedings was made prematurely, and the defendants should have received the opportunity to respond.

I turn next to the abuse of process point. As I have stated above, I find that the decision to commence proceedings was premature. The CQC ought to have postponed its decision, at least until the Defendants had been afforded a proper opportunity to respond. Moreover, the Defendants were denied the opportunity to set out their respective cases or make any representations, having been assured that the decision to prosecute would await their responses, or, as Mr Hassall puts it, denied their right to remain silent. 

The judge quoted from the Mansfield v DPP case:

“When the court is considering whether the circumstances are such as to offend the court’s sense of justice and propriety it will need to balance the public interest in ensuring errors or misconduct do not undermine public confidence in the administration of justice on the one hand with the public interest in ensuring that those accused of serious crime are properly tried on the evidence on the other.”

District Judge Strongman went on to conclude that CQC had committed an abuse of process, and subsequently the proceedings were to be stayed.

The prosecution argues that in this case a vulnerable person died, allegedly due to neglect and the poor quality of care afforded to them, and so the public interest demands that those responsible should be brought to justice and that the family of the deceased sees justice is done. I am reminded of the overriding objective in criminal proceedings to convict the guilty and acquit the innocent. 

I make no finding here of deliberate bad faith. The CQC was doing what it could in difficult circumstances, with time running out, to seek to keep these proceedings alive. However, I have found that the CQC wrongly manipulated the proper process of case review by purporting to make a final code assessment when it was plainly not in a position to do so. Had it acted appropriately by putting off the decision until such time as it might properly be made, then the case would have been out of time and the Defendants would never have been put in jeopardy. 

Cases where the court concludes that there is an abuse of process are exceptional and rare. In my view, the CQC’s course of conduct in this case so offends the court’s sense of justice and propriety that, notwithstanding the serious nature of the allegations and the obvious interest of Ms Lewis’ family in seeing the mater being tried and justice done for her, I am satisfied that to allow this prosecution to continue would be an abuse of the process of the court. Accordingly, I shall direct that the proceedings be stayed. 

23 February 2023

CQC appealed the decision of District Judge Strongman to the Administrative Court, seeking permission for a judicial review. This was heard in Birmingham on 23 February this year. CQC brought the case against Kidderminster Magistrates’ Court and Dimensions and Julie Campbell were the first and second interested party.

The court heard that originally CQC advanced three grounds for judicial review, but by the time it reached the court hearing, in February 2023, only one of those grounds was pursued, the third ground, namely that the conclusion of the District Judge was irrational.

Mr Justice Eyre considered the law relating to abuse of process and the circumstances in which the court can conclude a prosecution is an abuse of process, and consequently be stayed.

He then went on to consider the details of this claim. That CQC said that the District Judge had:

Erred in his conduct of the balancing exercise and reached an irrational conclusion. In short it is said that he could not rationally have concluded that this was Category 2 abuse such that the proceedings should be stayed. As a consequence the Claimant seeks an order quashing the decision and a declaration that there was not abuse. Such an outcome to the proceedings would lead to the matter going back to the magistrates for the prosecution to continue.

Mrs Justice Steyn had already refused permission for the appeal on all three grounds that the CQC had raised. Mr Justice Eyre, in this hearing, said he had come to the conclusion that this decision, the refusal, was right and “this is not a case where it is reasonably arguable that the District Judge’s decision was irrational”.

In those circumstances Mr Hassall and Mr Kay KCC will forgive me if I do not rehearse their arguments in detail. From the reasons I am about to give it will be seen that I accept substantial elements of those arguments, though I do need to make it clear that I do not accept Mr Hassall’s argument that it can be said that there was wider malpractice by the Claimant or that such wider malpractice was relevant.

It is important to focus on the District Judge’s conclusion together with the reasons for and the implications flowing from that conclusion. The relevant conclusion of fact was that the Claimant purported to make a decision as to the merits of the prosecution when it was not in a position properly to do so and that it did so because of a desire to commence proceedings before the expiry of the statutory time limit. There are a number of factors which are, in my assessment, relevant to the rationality of the District Judge’s decision.

The first is that the District Judge was clearly aware of the exceptional nature of staying proceedings on this basis and of the need to take care before reaching what he rightly regarded as an exceptional step.

Next he rightly took account of the public interest in the proper investigation of the deaths of those who are in the care of others.

Third, the District Judge had heard evidence from a number of the Claimant’s employees and had come to factual conclusions based on that evidence.

I feel deeply conflicted about the next point. I mean really why should a competent regulator need more than three years to bring criminal proceedings, but then look at the attempts to which Dimensions have gone to present partial versions of the truth surrounding Sally’s death publicly, for the sake of their reputation management, and the arguments made as recently as Tuesday of this week that Sally’s death wasn’t due to neglect. Anyhow, this is what Mr Justice Eyre said:

A highly significant factor is that the time limit of three years is a statutory time limit. That is a very potent indication of where the public interest lies. There is indeed a potent public interest in deaths such as Sally’s being properly investigated but there is also a potent public interest in those involved in providing care being able to draw a line under matters in the past. The limitation shows where that line is by the legislature drawn. It also indicates the true assessment of the gravity of these matters. The legislature has indicated that, serious though these matters are, they are not sufficiently grave for there to be a prosecution once three years had passed from the relevant incident.

Mr Greaney in his skeleton argument says that the stay has generated a windfall for the Interested Parties. I am afraid I see that as a wholly incorrect analysis of what has happened. The true analysis is that, as a matter of Parliament’s intention, the Interested Parties were entitled to be free of the risk of prosecution after three years from the incident and the Claimant’s actions removed that entitlement or that protection by what the District Judge found was an illegitimate stratagem. In that regard it is relevant that the court must not underestimate the stress, strain, anxiety and expense inevitably faced by those, whether individuals or corporate defendants, facing prosecutions of this kind.

The short point is that the Claimant launched proceedings by way of a prosecution where the circumstances were such that it should not have started the prosecution at that time and it did so in order to circumvent the statutory time limit. I have no doubt that in those circumstances it was open to the District Judge rationally to conclude that there was an abuse of process and that there is no real prospect of a different view being taken on a fuller hearing.

Permission is accordingly refused.

So there you have it. How Sally Lewis was failed, neglectfully, by Dimensions, Julie Campbell, Julie McGirr and all of those so called Support Workers responsible for providing her basic care. And how Sally was failed again by CQC.

Who suffers from all of this? From where I’m sitting the stress, strain, anxiety and expense faced by Dimensions and Julie Campbell is nothing, when compared to that experienced by Sally’s sister Julie.

Without her there would have been no inquest.

Without her there would have been no Safeguarding Enquiry.

Without her, based on what we’ve heard about the significance of the coroners bundles of evidence, there would have been no (failed) CQC prosecution.

Julie is left with a huge £24k legal bill, that she had to guarantee to pay. Please help her if you can.

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