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Older People: Prosecuting Crimes against

updated 30 April 2020|Legal Guidance, Fraud and economic crime , Hate crime

Introduction

This guidance deals with older people as victims and witnesses, not as offenders. It should be read in conjunction with the CPS Policy Guidance on the prosecution of crimes against older people.

For the purposes of the Policy and the Legal Guidance, our definition of a crime against an older person is:

Where the victim is 65 or over, any criminal offence which is perceived by the victim or any other person, to be committed by reason of the victims vulnerability through age or presumed vulnerability through age.

Where appropriate, cross-reference should also be made with other CPS Policies and Guidance (for example, where the case involves issues of disability, racist or religious hate crime, homophobic and transphobic hate crime or domestic abuse) and with other existing CPS commitments, such as those contained in the Code of Practice for Victims of Crime.

The CPS is committed to taking age equality issues into account in all our prosecution policies.

Relevance of age to case review and management

Whatever the age of a victim or witness, their needs and case-management issues should be assessed on an individual basis. Reliance should not be placed on pre-conceived or stereotypical notions and norms about older people in general.

Older people may sometimes be more vulnerable; not because they are older, but because of the circumstances in which they find themselves. Some may experience age-related illness or disability; some may be hard of hearing or have difficulties with their sight; for some, their speed of thought, mobility or movement may be slower than in younger people.

On the other hand, we recognise the diversity of circumstances for older people and that while some older people must rely on help to manage their affairs, the amount of help will differ and many older people will not consider themselves to be frail, vulnerable or in need of support in any way. Indeed, they may be offended by any such suggestion of frailty or vulnerability, which is why each victim and witness must be treated as an individual.

Public Interest

The Code, at paragraph 4.14(c), asks prosecutors to consider the circumstances and harm caused to the victim when considering whether a prosecution is required in the public interest:

  • The circumstances of the victim are highly relevant. The more vulnerable the victims situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.
  • This includes where a position of trust or authority exists between the suspect and victim.

Breach of trust implies reliance upon the integrity of a person when providing a service or carrying out a task entrusted to them. Betrayal of trust or abuse of authority in the context of older people could therefore include a wide range of service providers, such as, mini-bus drivers, cleaners, council contractors, carers, tradesmen etc.

The Code also states that where the offence was motivated by any form of prejudice, including against the victims age or the suspect targeted or exploited the victim or demonstrated hostility towards the victim based on their age, it is more likely that prosecution is required.

Other factors relevant to the public interest include where:

  • the suspect is in a position of authority and/or trust in terms of their relationship with the victim;
  • the offence has had an impact on the physical, emotional and/or mental health of the victim research has shown that older victims of crime can suffer more ill-health, both physical and mental, than their peers who have not been victims of crime ;
  • the offence was repeated or continued over a period of time, or there are grounds for believing that the offence is likely to be continued or repeated;
  • the offender has groomed the victim so that they feel they have a close relationship with them
  • the victim was considered to be vulnerable by the suspect;
  • the victim was injured;
  • the suspect used a weapon;
  • the suspect made any threats before or after the offence;
  • the suspect planned the offence;
  • there is a continuing threat to the health and safety of the victim or anyone else who is, or may become, involved; and
  • the suspect has a criminal history, particularly any convictions for offences against older people.

If the evidential test is met in wilful neglect or ill-treatment cases, the public interest will nearly always be in favour of prosecution, due to the position of trust that the suspect held in relation to the victim, as well as the extreme situational vulnerability of the victim.

Prosecutors also need to consider whether a prosecution is likely to have an adverse effect on the victims physical or mental health and well-being. If there is evidence that a prosecution is likely to have such an adverse impact on the victim, this may be a significant factor tending against prosecution. The victims views should be taken into account, and weighed against other public interest factors, always bearing in mind the seriousness of the offence and what measures or support might be available to minimise the impact on the victim.

Flagging of cases of crimes against older people (CAOP)

The CPS is committed to monitoring cases involving crimes against older people. The purpose is to identify cases, to examine whether all relevant issues have been addressed appropriately and to assess whether the case should also be classified and dealt with as a disability hate crime.

All cases which fall within the CPS definition of a crime against an older person should be flagged on our Case Management System. Some cases will require more than one flag, for example, cases that involve domestic abuse, rape, or racist, religious, homophobic, transphobic or disability hate crime elements.

All cases flagged as involving a crime against an older person will be monitored and reviewed as part of the live checks conducted in accordance with our national Hate Crime Assurance Regime.

Neglect and Abuse of Older People

There is not an offence simply of neglect of an older person other than in those circumstances set out in the Mental Capacity Act 2005, the Mental Health Act 1983 and the Criminal Justice and Courts Act 2015. However, the term abuse is used to describe a wide range of behaviours, many of which in fact amount to criminal offences.

Where a prosecutor considers that the abusive behaviour does not amount to a criminal offence that can be prosecuted by the CPS, it may still be appropriate to ensure that the matter is brought to the attention of other regulatory or disciplinary bodies, so that other steps can be taken to protect the vulnerable adult and to hold the abuser to account.

Case-building

It is important to recognise that the competence of a witness is a separate issue to that of the mental capacity of a witness. Mental capacity can be affected by numerous factors and a person with Alzheimers disease may have capacity which fluctuates over time, even during the course of a day. (Further Guidance on the competence of witnesses can be found in the Legal Guidance on the Competence and Compellability of Witnesses)

Prosecutors should therefore not make assumptions about the reliability, credibility or competence of a victim or witness to give evidence based on their age or age-related vulnerability. Instead prosecutors should at the earliest stage consider what special measures are available and appropriate to enable them to give their best evidence. At the same time, Prosecutors should also consider whether any reasonable adjustments (e.g. wheelchair access, hearing-loop etc.) will be required so that the victim or witness can give evidence.

In some cases the victim may be unable to give evidence or it may be undesirable to call them to give evidence for health or other reasons. Prosecutors should look for other evidence so that, in appropriate cases and where possible, the case may proceed without relying on their evidence.

This may involve seeking information or evidence from other agencies, for example, Social Services, NHS, specialist charities supporting older people the Care Quality Commission and Social Care Wales. More Information on relevant statutory bodies and agencies can be found at Annex A.

Care plans, visitor records, or medication records may provide useful sources of information or evidence.

Prosecutors should be pro-active in seeking information from the police to identify properly any aggravating features. This may include looking at previously reported incidents involving the same victim or suspect.

Prosecutors will want to be aware of any other investigations or proceedings pending or concurrent, in which other agencies may be involved, for example, the Health and Safety Executive, Local Authority, the Care Quality Commission or the Care Inspectorate Wales. This will include enquiries being conducted by Local Authorities under section 42 of the Care Act 2014 and Safeguarding Adults Reviews under section 44 of the same Act.

Section 42 requires that a Local Authority must make enquiries to decide what action should be taken where it suspects that an adult has care or support needs, is experiencing or is at risk of abuse or neglect and is unable to protect themselves in such circumstances.  

Section 44 requires Safeguarding Adults Boards to arrange for there to be a review of a case involving an adult in its area who has died as a result of abuse or neglect or if the adult is still alive but has experienced serious abuse or neglect.

Decisions not to prosecute - older victims

Where a decision has been made not to prosecute, but there is cause for concern for the welfare of any individual, consideration should be given to asking the police to inform local social services so that their adult safeguarding procedures may be invoked for the protection of that individual and others.

Issues concerning use of neglect, restraint and misuse of medication

Neglect

Neglect tends to have a physical impact. The development of pressure sores should be considered a primary indicator of neglect or poor care practice, but by no means a conclusive indicator.

Neglect may amount to a criminal offence under section 44 of the Mental Capacity Act 2005 (ill-treatment or neglect of a person lacking capacity), section 127 of the Mental Health Act 1983 (ill-treatment or neglect of mental hospital patients) or sections 20 and 21 of the Criminal Justice and Courts Act 2015 (ill-treatment or neglect by care workers or care providers). But in cases where the victim does not have a loss of capacity under the Mental Capacity Act 2005, is not being treated as a patient for the purposes of the Mental Health Act, or where the carer is an unpaid family-member or friend, prosecutors may find it difficult to identify an appropriate criminal offence.

Where possible, in such cases, prosecutors should ensure appropriate inter-agency discussions are held to determine how the vulnerable adult can be protected and how the person responsible for the neglect might be held to account.

The use of restraint

Improper use of restraint may amount to criminal offences of assault and/or false imprisonment and/or choking.

The Mental Capacity Act 2005 defines restraint as: "the use or threat of force to help do an act which the person resists, or the restriction of the person's liberty of movement, whether or not they resist. Restraint may only be used where it is necessary to protect the person from harm and is proportionate to the risk of harm."

When considering whether a criminal offence has been committed or whether the public interest requires a prosecution, prosecutors may find the following guidance and policy documents helpful in assessing whether the use of restraint was appropriate and proportionate.

Care Quality Commission: 'Brief guide: restraint (physical and mechanical)'

Physical Control and Restraint in Care Homes (Wales) Policy

Misuse of medication

Where a person is medicated to enable an indictable offence to be committed, section 22 of the Offences against the Persons Act 1861 may apply. Where a person is medicated or over-medicated for non-therapeutic reasons, such as to control their behaviour, a number of other offences may be relevant, such as unlawfully administering medication contrary to regulations 214(2) and 255(1)(b) of The Human Medicines Regulations 2012.

Domestic Abuse

Domestic abuse prosecutions should be addressed within an overall framework of violence against women and girls (VAWG) and human rights. Where appropriate, links with other VAWG topics such as rape and sexual offences, stalking and harassment, so-called honour based abuse etc. should be identified and the relevant polices and guidance followed.

As with all cases of domestic abuse, the victim may have been subjected to a pattern of abuse for months or years prior to the incident that was reported to the police. However, in cases involving older people who have been in long standing relationships, this issue can be particularly relevant. Prosecutors should be aware of the possibility that previous offending behaviour may be more serious in nature than the offence that they have been asked to consider. They should therefore ensure that they fully explore this issue with the police and ask for further enquiries to be made in all appropriate cases.

Some organisations have sought to distinguish between different categories of domestic abuse against older people:-

  • Domestic abuse 'grown old'. This is when domestic abuse started earlier in life and persists into old age.

  • Entering into abusive relationships late in life. This is when the perpetrator is a new spouse or intimate partner, or is related to a new spouse or partner.

  • Domestic abuse begins in old age. This can be linked to a variety of factors such as changes in caring responsibilities, retirement, disability or age-related illness, sexual changes etc.

Particular attention should be paid to the vulnerability of victims/witnesses and indications of controlling or coercive behaviour, for example:-

  • Economic abuse such as lack of control over financial affairs.

  • Denying contact with family and a wider support network.

  • Withdrawal of care and/or medication.

Domestic abuse can be perpetrated in an intimate relationship and, more widely, by any family member and may even be cross-generational, for example, child to parent or grandparent abuse.

There are a number of barriers that older victims can face to report abuse including:-

  • Shame that they are being mistreated by family members.

  • Lack of inclination to report as they may see themselves as a burden, and reporting would cause a further burden.

  • Lack of awareness of what constitutes abuse and what support services are available and how they might be accessed.

Further Guidance can be found in the 'Domestic Abuse Guidelines for Prosecutors' and 'Controlling or Coercive Behaviour in an Intimate or Family Relationship'.

Relevant Legislation

In addition to more common criminal offences with which prosecutors will be fully aware, the following legislation may also be relevant:

  • Section 44 Mental Capacity Act 2005 wilful neglect or ill-treatment of a person lacking capacity;
  • Section 127 Mental Health Act 1983 ill-treatment of a patients with mental disorder;
  • Sections 20 and 21 of the Criminal Justice and Courts Act 2015 ill treatment or wilful neglect by care workers or care providers;
  • Section 121 Anti-social Behaviour, Crime and Policing Act 2014 causing a person who lacks capacity to enter into marriage;
  • Section 76 of the Serious Crime Act 2015 controlling and coercive behavior in an intimate or family relationship;
  • Section 128 Mental Health Act 1959 offences pre-dating implementation of the Sexual Offences Act 2003, unlawful sexual intercourse with patients/residents suffering mental disorder;
  • Corporate Manslaughter and Corporate Homicide Act 2007- gross breach of duty of care causing a person's death;
  • Regulations 214(2) and 255(1)(b) of The Human Medicines Regulations 2012 - unlawfully administering medication;
  • Section 63 Medicines Act 1968 adulteration of medicinal products;
  • Section 4 Fraud Act 2006 abuse of position;
  • Section 5 Domestic Violence, Crime and Victims Act 2004 causing or allowing a vulnerable adult to die or suffer serious physical harm;
  • Health and Safety at Work Act 1974.

Prosecutors should also be aware of the powers of constables to remove mentally disordered persons to a place of safety under the provisions of Sections 135 and 136 Mental Health Act 1983.

More detail on the legislation in this section of the Guidance can be found at Annex B.

Victim and Witness issues

Victim communication and liaison - older victims

Victims of crimes that fall within the CPS definition of crimes against older people are entitled under the Victims' Code of Practice to be offered a meeting so that the prosecutor may explain their reasons in circumstances where there has been a decision not to charge, or for discontinuance of, or a substantial alteration to, the charge in which they are involved.

Special measures - older victims and witnesses

Where an older victim or witness meets the criteria of sections 16 or 17 Youth Justice and Criminal Evidence Act 1999, prosecutors and police will need to have early discussions to determine which special measures should be applied for that will assist the vulnerable or intimidated person to give their best evidence. The views of that person (or, in appropriate cases, their carers) should be taken into account.

The use of remote video links under section 24 (e.g. video link from the victim's home) or an intermediary under section 29 or Aids to Communication under section 30 of the 1999 Act may be of particular value in appropriate cases.

Reasonable Adjustments

Under the Equality Act 2010 where defendants meet the definition of disability, as set out in s6(1) of the Act, prosecutors should be aware that they may be entitled to reasonable adjustments under s20 of the Act and have a duty to bring it to the attention of the court.

Prosecutors should also be aware that reasonable adjustments may need to be made by the court in order to realise the right to access justice under Article 6 European Convention on Human Rights (incorporated through the Human Rights Act 1998) and Article 13 United Nations Convention on the Rights of Persons with Disabilities.

Support

Many older people who are victims of, or witnesses, to criminal offences are reluctant to report the crime, because they fear the consequences of reporting.

For example, they may think that they will be deemed to be unreliable witnesses; that they will not be taken seriously; that they may be victimised, lose their independence or be placed into an institution or care home as a result of giving evidence. They may also be embarrassed or ashamed. Fear, power and loyalty are factors that can prevent abuse being reported.

Through the way in which we handle the case, we must try to ensure that the older person has the confidence, knowledge and support to enable the necessary action to be taken to prevent further offences and to hold the offender accountable.

Our response and that of other statutory, voluntary and independent agencies should be coordinated. The variety, context and prevalence of crimes against older people mean that, through the polic, we must work closely with Social Services, social care and health care inspection and regulatory bodies, and advocacy/other specialist services for older people when handling cases.

We should treat each person as an individual, offering a personalised service and, within the necessary constraints of criminal justice system procedures, enable people to maintain their maximum possible level of independence, choice and control.

For example, where a person is accompanied by a carer or advocate or intermediary, we should give thought to the appropriateness of addressing remarks to the person rather than to the carer or other person, and our approach should be tailored to the circumstances of each individual case

For more guidance on the role of intermediaries click link.

'Whistle-blowers' (e.g. in care homes)

Whistle blowing is when an employee raises concerns about ethically questionable, dangerous or illegal activities by their employer which affect others, whether they are customers, members of the public or their employer.

It can be very difficult for witnesses to come forward when they may fear for their job and their career or fear the reactions of colleagues. This scenario has often arisen in care-home cases.

The Public Interest Disclosure Act 1998 protects workers from being subjected to what the Act describes as a 'detriment' by their employer (for example, denial of promotion or training) as a result of raising concerns, and workers who blow the whistle on wrong doing in the workplace may complain to an employment tribunal if they are dismissed or victimised for doing so. However, these safeguards do not necessarily make it any easier for a witness to give evidence against their employer and/or fellow employees.

Appropriate support from relevant agencies will need to be given to such witnesses; both to ensure their continuing commitment to the particular case and to increase public confidence so that others are encouraged to reveal serious wrong doing in their workplace (See also 'Protect' (formerly 'Public Concern at Work') at Annex A of this guidance).

Sentencing

Hostility

In relation to crimes against older people there is no statutory equivalent to sections 145 or 146 of the Criminal Justice Act 2003 (racial or religious hostility or hostility based on sexual orientation, transgender identity or disability). However, where there is evidence that the older victim has a disability, careful consideration should be given as to whether or not the case should be flagged and prosecuted as a disability hate crime. Further detailed guidance can be found in the 'Disability Hate Crime and other Crimes against Disabled People - Prosecution Guidance'.

Vulnerability and sentencing

In cases in which s.146 Criminal Justice Act 2003 does not apply, if there is evidence that the victim was deliberately targeted for their vulnerability, this will still make an offence more serious for sentencing purposes.

In such cases, evidence should be gathered and presented in such a way to ensure that the judge is able to properly reflect the seriousness of the offence when passing sentence. This approach was approved in R v Bridge [2012] EWCA Crim 2270.

Depending on the nature of the disability of the victim, some circumstances will be covered by charging specific offences where the condition of the victim is an element of the substantive offence. For example:

  • The offence by a care worker of sexual activity with a person with a mental disorder, under s.38 of the Sexual Offences Act 2003.
  • The offence by a carer of ill-treatment or wilful neglect of a person who lacks capacity, under s.44 of the Mental Capacity Act 2005.
  • The offence of ill-treatment or wilful neglect by a carer or care provider under Sections 20 and 21 of the Criminal Justice and Courts Act 2015.

Prosecutors should have regard to the relevant Sentencing Council Guidelines. Under many of the Guidelines, including those relating to Robbery, Theft and Burglary, Sexual Offences, Domestic Abuse, Assault and Fraud, the seriousness of the offence, and hence the severity of sentence, is increased where the offender is more culpable because he deliberately targets a vulnerable victim, or where a greater degree of harm is caused due to the victim being particularly vulnerable because of personal circumstances.

All Sentencing Council Guidelines can be found on the Sentencing Council website.

Where appropriate, prosecutors should explain to the court why s.146 does not apply and why the sentence should nevertheless be increased (albeit not to the degree that would apply in a s.146 case), due to the victim's personal or situational vulnerability. Relevant sentencing Guidelines should be highlighted, including any aggravating factors relating to the disability or vulnerability of the victim. Judges should be encouraged to state in their sentencing remarks the basis for any increase in sentence due to the victim's vulnerability.

The Sentencing Council General Guideline: Overarching Principles

The ‘Sentencing Council General Guideline: Overarching Principles’ state that a court is required to pass a sentence that is commensurate with the seriousness of the offence. The seriousness is determined by two main factors: the culpability of the offender; and the harm caused by the offending. The fact the offence involved a vulnerable victim is an aggravating factor which increases the seriousness of the offence.

Annex A: Statutory Bodies/Agencies;

AGENCIES / APPOINTMENTS

Care Quality Commission

The Care Quality Commission (CQC) is the independent regulator of health and adult social care in England. CQC makes sure health and social care services provide people with safe, effective, compassionate, high-quality care and encourage care services to improve. It monitors, inspects and regulates services to make sure they meet fundamental standards of quality and safety.

As provided for by the Health and Social Care Act 2008, as amended by the Care Act 2014, CQC is the primary enforcement body at a national level in England for ensuring that people using health and adult social care services receive safe services of the right quality.

CQC enforces the requirements set out by the Health and Social Care Act 2008, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and the Care Quality Commission (Registration) Regulations 2009. CQC is also responsible for monitoring and reporting on the use of the Mental Health Act 1983.

CQC enforcement powers include:

  • Using requirement notices or warning notices to set out what improvements the care provider must make and by when.
  • Making changes to a care provider's registration to limit what they may do, for example by imposing conditions for a given time.
  • Placing a provider in special measures, where we closely supervise the quality of care while working with other organisations to help them improve within set timescales.
  • Hold the care provider to account for their failings by: issuing simple cautions issuing fines.
  • Prosecuting cases where people are harmed or placed in danger of harm.

The CQC can serve a warning notice under Section 29A of the Health and Social Care Act 2008 when we believe that the quality of healthcare at an NHS trust or foundation trust requires significant improvement

Social Care Wales

In 2017, the social care workforce regulator Care Council for Wales became Social Care Wales.

Under the Regulation and Inspection of Social Care (Wales) Act 2016, the Care Council for Wales gained new powers to lead the improvement of social care in Wales and became Social Care Wales. Social Care Wales came into being in April 2017 and sets standards for the care and support workforce, making them accountable for their work.

Care Inspectorate Wales

The Care Inspectorate Wales is the independent regulator of social care and childcare in Wales. It registers, inspects and takes action to improve the quality and safety of services for the well-being of people in Wales. Amongst other services, the Care Inspectorate Wales is responsible for regulating and inspecting care homes.

The Care Inspectorate Wales carries out its functions under the following legislation:

  • Social Services and Well-being (Wales) Act 2014, which gives powers to review the way in which local authorities discharge their social services functions;
  • Regulation and Inspection of Social Care (Wales) Act 2016 ('the 2016 Act') which replaces the powers under the 2000 Act;
  • The Care Standards Act 2000 (pending the re-registration of all regulated social care providers under the 2016 Act from 2 April 2018 onwards),
  • Adoption and Children Act 2002;
  • Children and Families (Wales) Measure 2010 which give power to register and/or inspect providers of social care services in Wales.

The Disclosure and Barring Service (DBS)

The Disclosure and Barring Service (DBS) was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA). DBS is responsible for vetting all individuals who wish to work with vulnerable groups.

Independent Mental Capacity Advocates (IMCAs)

The Mental Capacity Act 2005 introduced into legislation the concept of independent mental capacity advocates (IMCAs) to safeguard the interests of people who lack capacity to take important decisions, where they have no one except paid staff to advise, support or represent them. Section 36 of the Mental Capacity Act and IMCA regulations set out the functions of IMCAs.

Where a person who lacks capacity does not have friends or relatives to consult, decision makers in local authorities, NHS Trusts and care homes have a duty to consult an IMCA.

Further information on the role of IMCA's can be found here: https://www.gov.uk/government/publications/independent-mental-capacity-advocates

Local Authorities and Safeguarding Adults Boards

Each Local Authority in England and Wales should ensure that there are protocols in place for dealing with adults identified as being at risk. Section 43 of the Care Act 2014 requires Local Authorities to establish Safeguarding Adults Boards (SAB). The objectives of the SAB are set out by the Act and are to protect adults who have care or support needs, are at risk of abuse or neglect or are unable to protect themselves in such circumstances. SABs should also ensure that local arrangements are working effectively and that Disclosure and Barring Service requirements are met.

Professional Bodies

These aim to protect the public by setting and maintaining standards within the professions by publishing codes of conduct, registering individuals and monitoring continuous professional development. Serious misconduct by an individual can be reported to those bodies.

  • The General Medical Council registers all doctors
  • The Nursing and Midwifery Council registers nurses and midwives
  • The Royal Pharmaceutical Society of Great Britain registers pharmacists and their premises
  • The Committee on Standards in Public Life - monitors the standards of people working in public office, including councils.

The Office of the Public Guardian (OPG)

The OPG replaced the Public Guardianship Office in October 2007. It is responsible for:

  • taking action where there are concerns about the actions of an attorney (granted powers do deal with an individual's affairs by that individual) or deputy (appointed by the Court of Protection to deal with an individual's affairs).
  • registering lasting and enduring powers of attorney, so that people can choose who they want to make decisions for them
  • maintaining the public register of deputies and people who have been given lasting and enduring powers of attorney
  • supervising deputies appointed by the Court of Protection, and making sure they carry out their work in line with the Mental Capacity Act 2005 looking into reports of abuse against registered attorneys or deputies

The Court of Protection

The Mental Capacity Act 2005 provides for the Court of Protection to make decisions in relation to the property and affairs and healthcare and personal welfare of adults (and children in a few cases) who lack capacity. The Court also has the power to make declarations about whether someone has the capacity to make a particular decision. The Court has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court. It is a superior court of record.

Protect

Protect (formally Public Concern at Work) is a charitable, independent organisation that offers support to whistle-blowers. It is also a legal advice centre regulated by the Solicitors Regulation Authority (SRA). Information that is communicated to them is subject to legal professional privilege and is also protected under the Public Interest Disclosure Act 1998. The type of public interest or whistle-blowing concerns upon which they advise include fraud, abuse in care, risks to consumers and significant regulatory breaches.

Annex B: Relevant Legislation;

Crimes Against Older People Legal Guidance Annex B

Relevant Legislation

Section 44 Mental Capacity Act 2005 (Ill treatment or Neglect of a Person Lacking Capacity)

A person commits an offence if he/she ill-treats or wilfully neglects a person:

  • who lacks mental capacity or whom he/she believes lacks mental capacity, and
  • that person has the care of the other person, or
  • is the donee of a lasting power of attorney, or an enduring power of attorney created by the person who lacks capacity, or
  • is a deputy appointed by the court for the person who lacks capacity.

The offence is triable either way and carries a maximum penalty on indictment of 5 years imprisonment and/or a fine.

A person lacks mental capacity if, at the material time, he/she is unable to make a decision for him/herself because of an impairment of, or a disturbance in the functioning of, the mind or brain: section 2(1).

It is immaterial if the impairment or disturbance is permanent or temporary: section 2(2).

A lack of capacity cannot be established merely by reference to a person's age or appearance, or by a condition, or an aspect of behaviour, which might lead others to make unjustified assumptions about capacity: section 2(3).

The question of whether a person lacks capacity within the meaning of the Act is to be decided on the balance of probabilities: section 2(4). Accordingly, there must be evidence to support the fact that the person lacked mental capacity at the time the offence was committed against him/her.

Even if the victim has capacity, it will still be an offence if the person who has the care of him/her reasonably believed he/she lacked capacity and ill-treated or neglected him/her. Reasonable belief' means that, in all the circumstances, a reasonable person would believe that the victim lacked capacity.

The Act applies to everyone who looks after or cares for someone who lacks mental capacity. This includes both those who have the day-to-day care of that person as well as those who only have very short term care, whether they are family carers, professional carers or other carers: see the 'Code of Practice for the Mental Capacity Act' for further guidance'.

The Act does not define 'ill-treatment' and 'wilful neglect'; therefore, these concepts should be given their ordinary meaning. For assistance on what constitutes 'wilful neglect', reference should be made to Archbold 2019 paragraphs 19-363f and 19-384/386/387 which deal with 'wilful neglect' and 'ill treatment' of children.

A person who, through personal inadequacy, has genuinely failed to appreciate that, for example, the other person needed medical care, is not guilty of the offence of wilful ill-treatment/neglect: R. v. Morrell [2002] EWCA Crim 2547.

Offences of ill-treatment and wilful neglect are continuing offences: R v Hayles [1969] 1 Q.B. 364, 53 Cr.App.R. 36 CA.

For the indictment, 'ill-treatment' and 'wilful neglect' should feature in separate counts.

The offence is either-way and carries a maximum sentence of five years imprisonment on indictment.

See also the Legal Guidance chapter on Offences against the Personfor further guidance on section 44 Mental Capacity Act 2005.

Section 127 Mental Health Act 1983 (Ill-treatment of Patients with Mental Disorder)

Section 127 deals with the ill-treatment or wilful neglect of mentally disordered patients within hospitals or nursing homes or otherwise in a person's custody or care.

A person lacking capacity will have a mental disorder; however not all persons with a mental disorder lack capacity.

Where a person with a mental disorder has been the victim of ill-treatment or wilful neglect but does not lack capacity for the purposes of s.44 Mental Capacity Act 2005, prosecutors should consider whether s.127 of the Mental Health Act 1983 is applicable to the facts of the case.

The Director's Consent is required for such prosecutions: section 127(4).

"Patient" is defined in s.145 of the Act as "a person suffering or appearing to be suffering from a mental disorder".

"Mental disorder" is defined in s.1(2) of the Act (as amended by the 2007 Mental Health Act) as "any disorder or disability of the mind".

Section 127(1) provides that it is an offence for any person who is an officer on the staff of, or otherwise employed in, or who is one of the managers of, a hospital, independent hospital or care home

  1. to ill-treat or wilfully to neglect a patient for the time being receiving treatment for mental disorder as an in-patient in that hospital or home; or

  2. to ill-treat or wilfully to neglect on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an out-patient.

Sections 127(2) and (2A) make similar provision for patients subject to after-care under supervision and patients subject to guardianship under this Act, or otherwise in the custody or care (whether by virtue of any legal or moral obligation or otherwise) of the person.

The offences are triable either way and carry a maximum penalty on indictment of 5 years imprisonment and/or a fine for offences committed after 1 October 2007, or 2 years and/or a fine for offences committed before then.

Sections 20 and 21 of the Criminal Justice and Courts Act 2015 (Ill treatment or Wilful Neglect by Care Workers or Care Providers)

Section 20 makes it an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that other individual.

The offence is either-way and carries a maximum sentence of five years imprisonment on indictment.

Section 21 creates an offence in respect of care home providers when:

  1. an individual who has the care of another individual by virtue of being part of the care provider's arrangements ill-treats or willfully neglects that individual,

  2. the care provider's activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and

  3. in the absence of the breach, the ill-treatment or willful neglect would not have occurred or would have been less likely to occur.

This is an either-way offence punishable only with a fine. The sentencing court may also make a Remedial Order and/or a Publicity Order.

Further assistance can be found in the Legal Guidance chapter on: 'Ill-treatment or willful neglect - Sections 20 to 25 of the Criminal Justice and Courts Act 2015'.

Section 121 Anti-social Behaviour, Crime and Policing Act 2014 (Causing a Person who Lacks Capacity to Enter into Marriage)

Section 121 makes it an offence if he or she:

  1. uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and

  2. believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.

In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form coercion).

Section 76 of the Serious Crime Act 2015 (Controlling and Coercive Behaviour in an Intimate or Family Relationship)

Controlling or coercive behavior in an intimate or family relationship (in force, but not retrospectively, from 29 December 2015)

  1. A person (A) commits an offence if
    • A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
    • at the time of the behaviour, A and B are personally connected,
    • the behaviour has a serious effect on B, and
    • A knows or ought to know that the behaviour will have a serious effect on B.
  1. A and B are personally connected if
    1. A is in an intimate personal relationship with B, or
    2. A and B live together and
    • they are members of the same family, or
    • they have previously been in an intimate personal relationship with each other.
  1. But A does not commit an offence under this section if at the time of the behaviour in question
    • A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
    • B is under 16.
  1. As behaviour has a serious effect on B if
    • it causes B to fear, on at least two occasions, that violence will be used against B, or
    • it causes B serious alarm or distress which has a substantial adverse effect on Bs usual day-to-day activities.
  1. For the purposes of subsection (1)(d) A ought to know that which a reasonable person in possession of the same information would know.

For the purposes of this offence, behaviour must be engaged in 'repeatedly' or 'continuously'. Another, separate, element of the offence is that it must have a 'serious effect' on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.

The offence is either-way and carries a maximum sentence of five years imprisonment on indictment.

Section 128 Mental Health Act 1959 (Unlawful Sexual Intercourse with Patients/Residents Suffering Mental Disorder)

This offence pre-dates and was repealed by the implementation of the Sexual Offences Act 2003.

Section 128 deals with unlawful sexual intercourse with patients/residents suffering from mental disorder.

The Director's Consent is required for proceedings.

The offence is indictable only and carries a maximum sentence of two years imprisonment.

Corporate Manslaughter and Corporate Homicide Act 2007 (Gross Breach of Duty of Care Causing a Person's Death)

This Act came into force throughout the United Kingdom on 6 April 2008. Where any of the conduct or events alleged to constitute the offence occurred before 6 April 2008, the pre-existing common law will apply.

Section 1(1) provides that an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised (a) causes a person's death and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Section 1(3) provides that an organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

The offence is triable only on indictment and on conviction the court may impose an unlimited fine: section 1(6)

The Director's Consent is required for proceedings: see section17.

Full guidance can be found here.

Cases which may result in proceedings for corporate manslaughter, with the exception of unincorporated partnerships, must be referred to the Special Crime Unit in the Special Crime and Counter Terrorism Division, CPS Headquarters, so that an overview of all cases can be maintained. Casework location thereafter will then depend on the complexity and sensitivity of each individual case.

Further guidance on the Referral of Cases can be found here.

The offence is usually charged alongside other offences, such as, gross negligence manslaughter for individuals and other health and safety breaches.

Regulations 214(2) and 255(1)(b) of The Human Medicines Regulations 2012  (Unlawfully Administering Medication)

These regulations make it an offence for a person to administer a prescription medicine unless that person is an appropriate practitioner (doctor, dentist etc.) or is acting in accordance with the directions of an appropriate practitioner.

This is an either-way offence with a maximum sentence of two years imprisonment

Section 63 Medicines Act 1968 (Adulteration of Medicinal Products)

Section 63 provides that: no person shall:

  1. add any substance to, or abstract any substance from, a medicinal product so as to affect injuriously the composition of the product, with intent that the product shall be sold or supplied in that state, or
     

  2. sell or supply, or offer or expose for sale or supply, or have in his possession for the purpose of sale or supply, any medicinal product whose composition has been injuriously affected by the addition or abstraction of any substance.

This is an either-way offence with a maximum sentence of two years imprisonment

Section 4 Fraud Act 2006 (Abuse of Position)

Section 4(1) provides that, with effect from 15 January 2007, a person commits fraud by abuse of position if he:

  1. occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

  2. dishonestly abuses that position, and

  3. intends, by means of the abuse of that position

  1. to make a gain for himself or another, or

  2. to cause loss to another or to expose another to a risk of loss.

Section 4(2) provides that a person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

The offence is either-way and carries a maximum sentence of 10 years imprisonment on indictment.

For further information see the Fraud Act 2006 Legal Guidance on the Infonet.

Domestic Violence, Crime and Victims Act 2004 (Causing or Allowing a Vulnerable Adult to Die or Suffer Serious Physical Harm)

Section 5 of this Act creates an offence of causing or allowing a child or vulnerable adult to die or suffer serious physical harm. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members. It is an offence triable only on indictment and carries a maximum sentence of 14 years imprisonment or a fine, or both: section 5(7).

The phrase: 'member of same household' is defined in section 5(4)(a) of the Act. People who live together in a family arrangement will clearly be members of the same household. Additionally, a person can be a member of a particular household even if he or she does not live there, provided that they visit it so often and for such periods of time that it is reasonable to regard them as a member of that household. This is a question to be judged on the particular facts of the case.

Where V lives in different households at different times, 'the same household as V' refers to the household in which V was living at the time of the act that caused V's death. To establish D's liability under this offence, the prosecution must prove not only that D was a member of the same household as V but also that he or she had frequent contact with V. What amounts to 'frequent' contact will also remain a question of fact and degree in each case.

The term: "household" is not defined in the Act. It is therefore arguable that the facts of a particular case could lead to a small, private care home being considered to fall within the term, given that the offence was: "drafted with the idea that member of the household will know enough about the activities of other members that they can be expected to be aware of the risk to the victim and take action. They are "complicit" in the offence, either directly or by proximity, through standing by during the preceding abuse or neglect and doing nothing." (Minister of State, Home Office, House of Lords).

For the purposes of this offence, a vulnerable adult is defined as a person aged 16 or over whose ability to protect themselves from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, old age or otherwise: section 5(6). This is a wider definition than that applied to vulnerable witnesses in the Youth Justice and Criminal Evidence Act 1999.

The offence is indictable only.

  • Where the vulnerable adult has died, the maximum sentence is fourteen years imprisonment.

  • Where the vulnerable adult has suffered serious harm, the maximum sentence is ten years imprisonment.

For further information, see the Homicide chapter in the Legal Guidance on the Infonet.

Health and Safety at Work Act 1974

Health and safety offences are usually prosecuted by the Health and Safety Executive, the local authority or other enforcing authority. The CPS may also prosecute health and safety offences, but usually does so only when prosecuting other serious offences, such as manslaughter arising out of the same circumstances. For further information, see Corporate Manslaughter Legal Guidance and The Work-Related Deaths: A Protocol for liaison.

Sections 135 and 136 Mental Health Act 1983 (Removal to a Place of Safety)

Section 135 allows a warrant to be obtained from a justice of the peace authorising the police to enter any place within the jurisdiction of the justice and remove any person suffering from a mental disorder, to a place of safety, if the police suspect the individual is unable of caring for themselves or is being ill-treated or neglected.

Section 136 provides for the removal to a place of safety of a mentally disordered person found in a public place.

Further reading

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