An interesting sentencing exercise

R v Clowes

Richard Barraclough KC

On 4.2.24 CLOWES was sentenced to 2 years imprisonment suspended for 2 years for gross negligence manslaughter.

On 29th November a jury sitting at Stafford Crown Court (Calver J) acquitted the defendant of unlawful act manslaughter and convicted him of gross negligence manslaughter.

RICHARD BARRACLOUGH KC was instructed by West Midlands CPS and led ROBERT PRICE for the prosecution.

The defendant and the deceased lived together. It was a loving relationship. Both were alcoholics. The deceased binge drank. The Crown alleged that following a bout of drinking and after her soiling herself the defendant pushed her into a bath of scalding water. The immersion had been set at 82 degrees many years before. When paramedics arrived, they found the deceased with scald marks on her body and piles of skin on the floor.

The sentencing judge Calver J had a view of the evidence which permitted him to choose low culpability

“I accept that there is a doubt as to whether Clare was immersed into scalding hot water at a temperature of 82 degrees by you or whether she was left in water of at least 50 degrees for a longer period of time in order to suffer the pattern of 3rd degree burns seen on her body. Whilst I consider it implausible that an intoxicated and semi-conscious Clare herself topped up the bath with the scalding hot water, I am willing to give you the benefit of the doubt, which I consider to be consistent with the jury’s verdict, that you left her in water of 50 degrees for a period of time whilst you went downstairs, and it was that which caused her burns, rather than your immersing her in water with a temperature of 82 degrees”.

What makes this a low Culpability Case?

In order for this to be a high culpability case the court would have to be satisfied that the offence was particularly serious because the defendant showed a blatant disregard for a very high risk of death resulting from the negligent conduct. That must mean something more than what is required for the ingredients of the offence.

Otherwise, the case would fall either within medium or low culpability. The balance would be between the extent of the disregard for the risk to life (high culpability) and whether there was a lapse in the defendants otherwise satisfactory standard of care as witnessed by those who spoke of how he dealt with Clare Bell generally when she was incapacitated (low culpability).

Medium culpability has a starting point of 4 years custody with a range of 3-7 years. Low culpability has a starting point of 2 years custody with a range of 1-4 years custody.

Calver J determined that there was no element of high culpability viz “blatant” disregard of a “very hight risk” of death to balance against the low culpability “lapse” in order to bring the case into the medium culpability category. The Crown did not argue to the contrary.

That being the case the judge was to sentence on the basis of low culpability. The judge put it this way:

“I consider this to be an exceptional case. Assessing the evidence in this exceptional case as a whole, I consider that your case falls within low culpability in the Sentencing Guidelines, the negligent conduct consisting of a lapse in your otherwise satisfactory standard of care”.

As regards aggravating factors it was the judge’s view based on psychiatric opinion that the fact that D was intoxicated at the time was neither an aggravating nor a mitigating factor. A psychiatrist had opined “ that D met criteria for an alcohol dependence syndrome, currently abstinent, clinical diagnosis of an alcoholic amnestic syndrome and depressive disorder, current episode moderate…. In other words, (he) is likely to have had limited ability to reduce or stop his alcohol consumption due to his genetic makeup and changes to his underlying brain circuits. Thus, in my view alcohol cannot be considered to be an aggravating factor in this case from a psychiatric viewpoint but rather a mental disorder”.

The judge accepted that Ds “…grossly negligent conduct ….was a lapse in an otherwise loving, caring relationship that (he) had with Clare….that (he was) under great stress at the time with Clare’s frequent binge drinking which caused (him) repeatedly to have to clean her up and it can have been no easy task to get Clare up the stairs and into the bath on the day of the incident. Indeed, Mr. Barraclough KC emphasises this feature of your case, namely the significant stress or pressure that you were under, in his Prosecution Sentencing Note. And…, (his) constant loving attention for Clare throughout (his) relationship is a notable feature of this case upon which many have remarked. I have read the character references of …, Clare’s father, …. your former wife, (and others) which all attest to this…. That you were otherwise a person of good character who showed nothing but kindness towards Clare up until the events of 9 August which occurred in the context of your mutual intoxication. As I have said, this makes this a very sad case indeed”

The Judge’s conclusion on sentence

The judge’s conclusion was that “on the exceptional facts of this case…having considered the matter anxiously and carefully, I do not consider that immediate custody would be appropriate punishment on the facts of your case, nor do I consider that appropriate punishment can only be achieved by immediate custody. Indeed, I consider that immediate custody would be inappropriate on the exceptional facts of your case and that it would not be in the public interest, despite the seriousness of your offence. Whilst by no means decisive, it is noteworthy that none of the professional people who have considered your case, ….consider immediate custody to be the appropriate punishment on the facts of your case”.

The Guardian report on the calls for review of the ‘lenient’ sentence

For more information about the work undertaken by Richard Barraclough KC and his particular areas of expertise, please contact his clerk, Jayne Drake.