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R v Dunn [2010] EWCA Crim 2935

Dunn had been convicted of four counts of ill-treating a person without capacity contrary to MCA 2005 s44 against three victims at the residential care home of which she was manageress. The judge had directed that 'a person without capacity' meant a person unable to make decisions for himself because of a disturbance or impairment of function of the mind or brain, that a diagnosis of dementia was not enough, that 'impairment' could be permanent or temporary, that capacity was presumed unless disproved on the balance of probabilities, and that this direction applied to all three victims. The defendant appealed on the basis that the direction on 'a person without capacity' was inadequate, failed to focus on the capacity of each victim to make a decision at the relevant time, and failed to identify the questions required by s3. Appeal dismissed. (1) The legislation, including s2, was convoluted and did not appropriately define the elements of the offence (including 'matter' and 'disturbance or impairment'). (2) Lack of capacity had to be decided on the balance of probabilities. (3) There was a disconnect between s44 (referring to 'persons without capacity') and the elaborate definition sections (ss2 and 3), but it was open for the jury to conclude that the decisions regarding care (the 'matter') were taken had been made because the victims lacked capacity. (4) It was unnecessary for the judge to complicate matters by referring to s3, and the conviction was safe. [Summary based on All ER (D) summary in absence of transcript.]


Before: Lord Judge CJ, Calvert-Smith and Griffith Williams JJ

Hearing: 23 November 2010 (extempore judgment)


[2010] All ER (D) 250 (Nov)

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