By Ashley Young And Bethany Ruby Rose-
A solicitor jailed earlier this year for wilfully neglecting her 79-year-old mother has won her appeal.A conviction against Emma Jane Kurtz that saw her receive a jail sentence has been squashed by Court of Appeal judges, after they highlighted an error in law.
Three Court of Appeal judges ruled that Oxford Crown Court were in error in sentencing Emma-Jane Kurtz under section 44 of the Mental Capacity Act 2005 because the prosecution had not established that Kurtz could reasonably have believed that her mother lacked capacity to look after herself.
Kurtz, a solicitor specialising in elderly care cases was convicted in April after her mother was found dead on a sofa at the family’s Didcot home in 2014. Kurtz was sentenced to 30 months in prison for neglect because she had a power of attorney over her mother.The crown court judge failed to apply the law correctly, in a case that has already cost the solicitor time in jail. She will surely be due compensation for this huge blunder.
The appeal judgement states that, at the Crown court, the trial judge directed the jury that a charge under section 44(1)(b) did not require proof of lack of capacity. However the appeal found that under the act it was not sufficient just to show that the defendant had been granted power of attorney and wilfully neglected the deceased. ‘That means the judge misdirected the jury in a material way and we are satisfied that the appellant’s conviction is therefore unsafe.’
The judgement adds: ‘We have every sympathy for the trial judge,’ noting that he had to interpret the statutory provision without Court of Appeal authority and against the background of criticism by the Court of Appeal over the drafting of section 44. However the failure to direct the jury that the offence created by the section applies only in cases where the neglected person lacks capacity – or the defendant reasonably believes to lack capacity – is fatal to the safety of the conviction”.
There is no reason to sympathise with the trial judge because it is his job to fully understand the law. Applying the law incorrectly is an awful error no judge should have to make. This is even most crucial when it means the difference between a defendant being in jail or being free.