Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst

It is hardly surprising that the sentence passed on John Broadhurst, 3 years and 8 months imprisonment for the manslaughter of his girlfriend Natalie Connolly, has been widely condemned. The Attorney General has announced that he is considering whether to refer the case to the Court of Appeal, which would amount, in effect, to a prosecution appeal against sentence.

The terrible death of a deeply loved and blameless young mother is a very difficult thing to comment on. Perhaps for this reason the Crown Prosecution Service has not said anything about the outcome of the case at all.

The case raises some very uncomfortable questions: why was the murder charge not left to the jury? Why was the sentence so short? Is the law too soft on men who kill women? These are entirely legitimate matters of public concern.

On the other hand it is also very important that comment based on inaccurate or incomplete facts is corrected. The decision to withdraw the murder charge from the jury has been presented as though it were self-evidently absurd: it was not. It has been said that Mr Broadhurst was acquitted of murder simply by asserting that Ms Connolly liked being beaten: that is not true either.

The bare legal facts are that he was formally acquitted of murder by the jury, on the judge’s direction, after the prosecution decided to accept his plea of guilty to manslaughter.

It is easy to see why the decision to drop the murder charge has attracted outrage. Mr Broadhurst had inflicted “over 40” injuries to Ms Connolly: her buttocks, lower back and breasts were covered in bruises. She had haemorrhaged from an injury to her vagina, caused when Mr Broadhurst first inserted and then tried to remove a bottle of cleaning fluid. She also had what was described as a “blowout fracture” of her left eye socket. As she lay dying at the bottom of his stairs, he went to bed. When he eventually rang 999 to call for an ambulance the following morning he described her as “dead as a doughnut,” an awful, almost playful, phrase to use in such terrible circumstances.

In opening the case, the prosecution asserted that she died after Mr Broadhurst “totally lost it” and “beat her with his fists.” David Mason QC suggested that jealousy was the motive: Mr Broadhurst, he said, had discovered that his girlfriend had been contacting ex-boyfriends, and had arranged to meet a man in Dubai.

On the face of it this was a classic case of a violently abused young woman who had been appallingly treated by her jealous older partner.

How on earth could the CPS give up on pursuing a murder conviction? And how could it be that the judge felt that a sentence of less than 4 years imprisonment could be an appropriate punishment on a man who had not only killed, but also inflicted such injuries on her?

Jane Merrick spoke for many when she tweeted:

The callousness of this case has sickened me, and as the judge said today, he was capable of making decisions, but 3 years and 8 months for brutally attacking his girlfriend and then failing to get help, leaving her to die seems … astounding.”

She expanded on the theme in a piece in last Thursday’s Independent:

Natalie sustained no fewer than 40 separate injuries, including serious internal trauma, a fractured eye socket and facial wounds. He poured bleach on her face. Bleeding but still alive, the woman who Broadhurt’s defence team claimed was his “loved one” was left to die at the bottom of this stairs while he went to sleep, and when he eventually called 999 he described Natalie – supposedly his “loved one”, remember – “as dead as a doughnut”.”

Barbara Ellen asked in The Guardian:

What was the CPS thinking – perhaps something along the lines of: “Any conviction is better than nothing”? Did it really not trust a jury to be convinced of intent in this instance? If not, exactly what would it take for a woman’s violent death at the hands of her partner to be called murder?”

Even before the judge’s sentencing remarks were published, Harriet Harman announced that she was going to make a formal request to the Attorney General to refer the sentence to the Court of Appeal.

And it was not just the sentence that she criticised. On Women’s Hour last week she suggested that a change in the law was needed because:

We cannot have a new defence which was “yes it was violence but it was violence she wanted because, you know, she was the sort of woman who wanted S&M.”

It doesn’t matter whether or not people do want S&M or not, nobody is justified in killing another person.”

For now, all I can do is to suggest why, understandable though it is to be angry about the outcome of the case, criticism of the judge, prosecution counsel and the CPS is misplaced. The case has been presented as a case of feeble prosecutors throwing in the towel because, for some vague and unspecified reason, they didn’t trust a jury to convict a man on overwhelming evidence.  According to Dani Garavelli in The Scotsman, Natalie’s “reputation had to be publicly trashed so a man could be let off lightly.”

The problem with this argument is that it is utter nonsense. What we now know suggests that manslaughter, not murder, was indeed the proper verdict. Mr Broadhurst did not carry out a “brutal attack” on Ms Connolly. He behaved appallingly: he could and should have saved her life, but he did not murder her.

And there is something else that we can say with complete certainty:

Contrary to Harriet Harman’s claim, there is no new defence of “yes it was violence but it was violence she wanted because, you know, she was the sort of woman who wanted S&M.” That has never been a defence to murder, and it was not a defence in this case.

*** *** ***

Jane Merrick argued with great force that the decision to drop the murder charge was “extraordinary”:

It would be difficult to conceive a jury failing to convict Broadhurst for murder after hearing all this evidence but, in an extraordinary decision last week, the CPS decided to downgrade the charge to manslaughter, based on a calculation that the jury may not have convicted because prosecutors could not sufficiently prove intent.”

In fact, it is not even clear that the decision to drop the murder charge was that of the prosecution, rather than a decision effectively forced on them by a direction of the judge: it certainly followed legal argument, and according to the report on prosecution counsel’s chambers website, Mr Broadhurst was:

“ … cleared of murdering Natalie Connolly and causing her grievous bodily harm on the directions of the judge following legal submissions part-way through the trial at Birmingham Crown Court.”

But even assuming that Ms Merrick is correct, and the decision was that of the prosecution, we still do not know precisely why they took it. None of the legal arguments leading up to that decision have been reported. If the judge gave a ruling on any of them that has not been reported either, and the judge’s sentencing remarks do no more than hint at what they might have been. So it is of course possible that she is right, and that the decision was “extraordinary” and a terrible error. But it is far more likely that she is wrong.

The sickening, features of the evidence in this case cannot change the essential principle: if there is no reasonable prospect of a conviction on any charge, no matter how serious, the duty of a prosecutor is not to pursue that charge. It is not, in those circumstances an “extraordinary decision” to drop a murder charge. It is the correct decision.

To continue to prosecute when the evidence cannot properly support a conviction is not only professionally unethical, it is also inimical to justice. Quite apart from the obvious injustice of trying to persuade a jury to convict someone of murder on inadequate evidence, it may well result in a defendant walking free, when a lesser charge would have achieved a conviction for the offence actually committed.

Ms Merrick says the prosecution dropped the murder charge because they believed that they “could not sufficiently prove intent.” It’s not clear how she knows this for sure, but on what has been reported, proof of intent would indeed have been very difficult and that difficulty may well have been the explanation.

Proof of murder requires either an intent to kill or to cause serious injury (or as the law calls it “grievous bodily harm”).

What do we know of the strength of the Crown’s evidence on the question of intent?

Intent

The evidence of intent to kill was very weak.

At first sight that seems absurd: the poor woman was covered in over 40 different injuries. If that is not sufficient evidence of intent to kill, what would be?

It is true that the bruises were in themselves not life-threatening, but surely they were evidence of a murderous intent? Injuries which are not lethal, or even particularly serious, may still be powerful evidence of an intent to kill. If a man batters a woman, death may be caused by just a single blow to the head, but 40 non-fatal bruises to other parts of the body would normally be evidence of the brutality of the assault. One blow to the head might be explicable as a punch thrown in momentary anger; 40 bruises suggest a vicious and sustained attack.

However strong such an argument might seem in the abstract, the bruises did not lead to that conclusion in this case.

This is because Natalie had sustained similar bruises during consensual sex with Mr Broadhurst before. That fact did not depend on the word of Mr Broadhurst alone. Natalie’s twin sister, Gemma, gave evidence for the prosecution, which was reported in the Stourbridge News:

Natalie told me he was good in bed, and he liked to have rough sex.

The rough sex was routine and would include John Broadhurst smacking her bottom with a belt.

She showed me belt marks on her bottom and grab marks on her arm.

I was shocked by that.

I knew that with one previous boyfriend she had had rough sex, though not to that extent.”

Ms Connolly was quite open about the fact that she enjoyed being spanked during sex. Her friends and family knew about it and jokingly called her “Anna” after the character in 50 Shades of Grey.

It is not victim-blaming, or “trashing a dead woman’s reputation” or misogyny to point out that this was obviously important evidence. It was independent corroboration of Mr Broadhurst’s case,  which was that the bruises, at least, were not evidence of an intent to kill, or to cause serious injury, but were sustained during consensual sexual activity. What do these wise commentators suggest the prosecution should have done with this evidence, bearing in mind it came from the prosecution witnesses? Concealed it? Refused to call the witnesses? Argued that the jury should decide a murder case in ignorance of the facts?

In his sentencing remarks the judge said:

I am satisfied that you and Natalie did engage in sexual activity which involved consensual beating and the like for the purposes of sexual stimulation.”

Far from the bruises indicating a “brutal attack,” the evidence actually pointed, quite strongly, in the other direction.

What of the other injuries? They were more serious than bruises and they could not be so easily explained: an internal injury, caused according to Mr Broadhurst when Ms Connolly asked him to insert a bottle, with a handle, containing cleaning fluid into her vagina, which caused arterial bleeding, probably when he tried to remove it. That probably amounted to grievous bodily harm, but it was an injury consistent with an accident (if done with her consent) or with a sexual assault (if done without her consent), rather than a deliberate attempt to injure or kill.

Finally, there were the head injuries, and in particular the fractured eye socket. The judge described these as the “most serious” injuries. They were certainly consistent with punches or a kick to the head and hardly something likely to have happened as part of sexual activity, consensual or otherwise. When the case was opened the prosecution asserted that they were caused by punches.

Yet there was an obvious difficulty, which the judge pointed out in his sentencing remarks: the head injuries were equally consistent with having been caused accidentally:

as she stumbled around in a heavily intoxicated state and collided with objects ….”

So if an intent to kill was impossible to establish, what about an intent to cause grievous bodily harm?

Given the equivocal medical evidence, the head injuries were no more evidence of an intent to cause grievous bodily harm than they were of an intent to kill. The prosecution’s original assertion that they had been caused by a punch was not supported by the expert evidence.

This leaves the vaginal injury. Only Mr Broadhurst could know for sure why he inserted the bottle. He said that Natalie asked him to. The prosecution had great difficulties disproving his account. According to his solicitor “computer and real evidence found at the scene … evidenced Natalie’s proclivity for such things.” If that is correct, it would have supported Mr Broadhust’s account.

There was at one stage a count of assault by penetration on the indictment, which again was dropped by the prosecution. Given that the insertion of the bottle came “towards the end of [the] sexual activity,” and Natalie’s exceptionally high blood alcohol level, there was at least a potential argument that she was too intoxicated to have the capacity to consent to such an act. Mr Broadhurst himself said that when he tried to remove the bottle she was “slurring her words and talking gobbledy-gook.” On the other hand, Mr Broadhurst’s account was that she asked him to do it, which, if true, would suggest that she did have such capacity at that point. Unless the Crown could disprove that account, they would not secure a conviction of a sexual offence. And even if they had done so, the intent required for a sexual offence is quite different from that required for a murder conviction.

Although consent is a critical issue in relation to a sexual allegation, it is irrelevant to murder. The law is clear from the cases of Brown [1994] 1 AC 212 and M (B) [2018] EWCA Crim 560: a person’s consent to masochistic sexual activity does not provide any defence to a charge of causing either actual or grievous bodily harm, and obviously not to a murder charge either.

Contrary to Harriet Harman’s Woman’s Hour assertion, Mr Broadhurst was not acquitted because he said “yes it was violence but it was violence she wanted because, you know, she was the sort of woman who wanted S&M.” That argument was not advanced, could not properly have been advanced, and would have been immediately rejected by the judge if it had been. With the greatest of respect to Ms Harman this part of her contribution to Woman’s Hour was nonsense.

Was there anything else which might prove an intent to kill?

Mr Broadhurst went to bed, leaving Ms Connolly bleeding and unconscious at the bottom of the stairs. It was at the very least a grossly irresponsible thing to do but was it evidence that he intended to kill her? He also used bleach, both to clean blood off the stairs and – he said – to clean blood off Ms Connolly’s face. Was that an attempt to destroy incriminating evidence? Possibly, although it’s hardly overwhelming evidence of an intent sufficient for murder.

Without such proof, the murder charge simply could not succeed. I don’t know whether Ms Merrick is right in saying that the prosecution dropped the case because they felt that they could not prove intent, but I can see that they would have faced extremely difficult evidential problems in doing so.

And proof of intent was not the only problem.

Almost as problematic was proof of causation: in other words proving that the injuries inflicted by Mr Broadhurst in fact caused her death.

Causation

A central issue was the effect of drink and drugs. Both Natalie and (to a lesser extent) Mr Broadhurst were heavily under the influence of alcohol and drugs. Natalie had a blood alcohol level nearly 5 times the legal drink-driving limit, and there was also evidence that she had ingested cocaine, amphetamines and “poppers.” According to prosecution counsel, opening the case:

While the alcohol consumed by Natalie could have killed her on its own, in this particular case, it is pathologist Dr Alexander Kolar’s opinion that the combination of injuries and alcohol has caused her death – in that the injuries have, at the very least, accelerated her death.”

I have not been able to find how, or even whether, Dr Kolar expanded on this in his actual evidence. The sentencing remarks skate around the issue with an oblique reference to “causation difficulties,” but in fact causation seems to have been one of the main problems faced by the Crown in proving murder.

Natalie’s blood alcohol level on its own put her into the bracket where, on the evidence, “coma and death” would be expected. Professor Jones, a defence expert described by the judge as “one of the world’s leading experts in the field,” said that he had “never seen such high levels of alcohol and cocaine together.” Unless the prosecution could exclude the possibility that the alcohol, or the combination of alcohol and cocaine, caused death, the Crown did not have a case on the murder charge.

It is not uncommon in homicide cases for there to be more than one cause of death. For example, if a person is stabbed and taken to hospital alive but later dies of an infection in the wound, there could be said to be two causes of death: the initial stabbing and the infection. The stabber does not get off the hook by saying “my stab wound only killed him because the doctors were useless.” As long as a defendant’s act is a significant cause of death, it need not be the sole cause for him to be guilty of murder.

The obvious difficulty in this case, though, was that the Crown’s pathologist thought that Natalie’s death was “accelerated” by her injuries, it could have been caused by alcohol alone. Without some rational basis upon which the jury could be sure that her injuries contributed to her death, and that those injuries were deliberately inflicted by Mr Broadhurst, how could it be sure?

It seems very unlikely that the bruises contributed to her death.

The vaginal haemorrhage might have done so. In some cases a haemorrhage can of course be fatal; but according to a defence gynaecologist who gave evidence, in this case the blood loss would not have been sufficient to cause death:

I do not think, from evidence of the photo or post mortem and particularly from the carpet, that she died from uncontrollable haemorrhage that was significant.”

That left the head injuries: but as we have seen the prosecution could not exclude the possibility that these were sustained accidentally.

It is, of course, possible that the prosecution may have overlooked crucial points which, if taken, would have dealt with the difficulties of both intent and causation. But it is far more likely that, through no fault of the prosecution, the evidence – when tested – simply did not support their initial case. In that case Mr Mason and the CPS should not be castigated for dropping the case, they should be thanked for doing their duty.

In any serious case, although the decision on whether to continue with a particular charge rests ultimately with the CPS, before a charge is dropped consultation with the victim, or in a murder case the bereaved members of the family, almost always takes place. That happened in this case, and Mr Mason told the court:

The family of the victim have been consulted and are entirely content with the view that the prosecution have taken.”

If the family were content with the prosecution decision, that in itself ought to at least give some pause to wonder whether it was really such an outrageous decision to accept a plea of guilty to manslaughter.

Sentence

Even if Mr Broadhurst was rightly acquitted of murder, many will still think that a sentence of 3 years and 8 months was far too lenient.

Here the judge was constrained by two things: the basis of Mr Broadhurst’s guilty plea, and the formal Sentencing Guidelines for manslaughter.

His plea was not an admission that he had directly killed Ms Connolly. Rather, he admitted gross negligence in failing to look after her and in particular by failing to summon medical assistance despite her obvious injuries and gross intoxication. In other words, that he overlooked or ignored an “obvious and serious risk of death.”

The guidelines in question only came into force on November 1st 2018. There is, as yet, no case-law to help with their interpretation.

The sentencing judge is first required to assign the crime to one of 4 categories. Category A is the most serious, Category D the least.

The Guidelines identify a number of (non-exhaustive) factors which determine the sentencing category into which any particular manslaughter belongs. In this case the prosecution argued that Category B applied because:

The offence was particularly serious because the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct.”

Ms Connolly was extremely intoxicated – before collapsing she had been staggering around and falling over – she was covered in bruises, she had suffered a head injury and was bleeding from her vagina. In those circumstances, they said, there was a “blatant disregard for a very high risk of death,” which Mr Broadhurst ignored.

The defence, on the other hand, made the point that since manslaughter by gross negligence by definition always requires someone to ignore an “obvious and serious risk” of death, the expression “blatant disregard for a very high risk of death” must involve a significantly higher risk of death than in an “ordinary” manslaughter. Here, they said, although there was an obvious and serious risk of death, it would not have been “blatantly” obvious to Mr Broadhurst.

There was a further factor capable of placing the manslaughter into Category B which the judge considered, although the prosecution did not rely on it:

The negligent conduct was in the context of other serious criminality.”

The difficulty here was that Mr Broadhurst had been formally acquitted of causing GBH with intent and assault by penetration (either of which would surely amount to “other serious criminality”). Even though his beating of Ms Connolly amounted in law to assault occasioning actual bodily harm, that is not a particularly serious offence, and indeed the Crown had never charged him with it. The judge rather fudged the issue. Although Mr Broadhurst had never been charged with ABH, he said:

I am satisfied so that I am sure that you caused the bulk of the injuries to Natalie’s breasts and her bottom/lower back …. In my judgment, this amounted to actual bodily harm of quite a serious type, given the tissue haemorrhaging which Dr Kolar found to be associated with the bottom/lower back injuries.”

Was this “serious criminality” of a type that would elevate the offence into Category B? The judge thought not:

However, this was not quite the type of ‘serious offending’ contemplated in Category B.”

It was not to be ignored, particularly as it “led on to the insertion of the bottle into her vagina which caused her serious further injury,” but nor was it quite serious enough to place the offence in Category B.

The judge also took into account that the insertion of the bottle, though not criminal, was nevertheless “grossly irresponsible.”

The upshot was that the judge felt the manslaughter did not quite fall clearly into Category B, but rather “at the upper end of Category C.”Category B has a starting point of 8 years imprisonment, with a range of 6 – 12 years.

Category C has a starting point of 4 years, with a range of 3 – 7 years.

The judge was also required to take into account other mitigating and aggravating factors. These were capable of moving the sentence up or down within the particular category range.

One factor he was required to treat as “aggravating” was that the offence was committed whilst he was himself under the influence of drink, although:

I also recognise that was an aspect of your breach – in other words, I accept that your decision to go to bed was taken in drink and I guard against risk of double counting.”

On the credit side, the judge said:

I treat you as a man of good character as you only have one unrelated previous conviction. I have regard to your good character more broadly for the other reasons that have been advanced. You are a successful businessman. I accept that you are a loving father and the sole carer of JR and were a good partner in your previous relationships. I also accept that you loved Natalie and were planning a future together with her and her daughter and your son.”

There is nothing remotely odd or unusual about such remarks. Anyone sentenced by a court would expect the judge to take into account good things about them as well as bad, and the manslaughter guidelines explicitly require “good character” and being the “sole or primary carer for dependent relatives” to be taken into account by a sentencing judge.

In the view of Knowles J. these aggravating and mitigating features balanced out, giving a “starting point” of 5 years and 6 months; towards the “top end” of a Category C manslaughter.

Finally, a judge is required to give a proper discount to the sentence for pleading guilty. Broadly speaking the principle is this: if a guilty plea is entered at the first possible opportunity the proper discount is a reduction in the prison sentence of one third off the sentence that would otherwise be imposed. If the plea is left to the last minute the discount is reduced to a very small percentage, or even to nothing at all.

Whether the judge was right to give such a discount depends on matters which have not yet been reported: for example, if Mr Broadhurst had offered to plead guilty to manslaughter by gross negligence at an earlier stage, and the Crown had refused to accept his plea, that might well entitle him to one third off his prison sentence. By contrast, if the prosecution had indicated that they would accept such a plea at an early stage, but he had insisted on contesting the case, any discount would be much less.

I am not going to speculate on whether the judge was right to give the full discount. No doubt that is one of the many things that the Attorney-General will be considering before deciding whether he should refer the case to the Court of Appeal.

Wealth

Was Mr Broadhurst acquitted because he was wealthy?

He was not legally aided, and his defence would not have been cheap. As well as Stephen Vullo QC (one of the country’s finest defence counsel) he was able to pay for expert witnesses of great eminence. The toxicologist, Professor Jones, for example, was one of the world’s leading experts, and in addition he instructed a pathologist, a maxillo-facial surgeon, a gynaecologist, a forensic physician, computer and telephone experts and a private investigator. A legally aided defendant on a murder charge would be entitled to leading counsel and would probably be able to instruct experts in all those disciplines (although perhaps not the private investigator), but he would have been limited to choosing those who were willing to work for legal aid rates. Mr Broadhurst’s wealth meant that he had a far wider choice, and the ability to instruct the greatest expertise that money could buy.

That does not mean he was “unfairly” acquitted. Rather, it serves to highlight that ordinary defendants, who do not have Mr Broadhurst’s savings to call upon, may be unfairly convicted.

The scandal is not that he was acquitted because he was wealthy but that others may have been convicted because they were poor.

The post Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst appeared first on BarristerBlogger.

Source: http://barristerblogger.com/2018/12/24/everything-we-know-suggests-that-the-cps-was-right-to-drop-murder-charge-against-john-broadhurst/

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