In a tragic case before Winchester Crown Court, 80-year old Elizabeth Butler had been charged with the attempted mercy killing of her profoundly disabled 60-year old son.

Mrs Butler’s son suffered from cerebral palsy, significant contractures in his spine, legs hands and arms and severe learning difficulties. He was bedbound and did not have the physical ability to feed himself, instead relying upon food being administered through a feeding tube inserted directly into his stomach.

Mrs Butler cared for her son in the best way that she knew how and as a loving and devoted mother for 58 years, until, on 12 October 2020, a court ruled that her son would be placed in a residential care home. The impact of the court ruling upon Mrs Butler’s mental health was devastating and tiggered a delusional disorder, where she genuinely believed that her son would be taken away and given experimental drugs without his consent, and that the only way she could avoid this was to bring about both his death and her own.

Within a day of the court decision to remove her son, Mrs Butler attempted to take his life by administering morphine into his feeding tube, and then sought to kill herself by swallowing handfuls of pain medication. Mrs Butler then climbed into bed with her son, believing that they would both leave the world together.

Mrs Butler’s daughter arrived at her home the following morning to discover her mother cradling her brother in his bed. An ambulance was called, and Mrs Butler and her son were treated in hospital for overdoses. Mrs Butler remained in hospital temporarily under the provisions of the Mental Health 1983 and, when her son had recovered, he was transferred to a care home.

Mrs Butler later attended a voluntary interview with the police, where she admitted trying to end both her son’s and her lives by administering overdoses over medication. In interview, she described how she laid in bed with her son, “giving him a massive cuddle”, telling him how she was never going to leave him, and that they were about to go on a nice holiday and be in the sunshine together.

Mrs Butler was charged with the attempted murder of her son. She had no legal defence to the charge. Had her son died, she would have been able to rely on the partial defence of manslaughter by reason of diminished responsibility but that partial defence was not available on a charge of attempted murder.

After pleading guilty to the indictment in court, on the advice of her legal team, Mrs Butler was assessed by a specialist old age psychiatrist, who not only found that she was suffering from a delusional disorder at the time of the offence, but that she was also suffering from a severe depressive disorder as a consequence of the offence.

The Defence relied on the cases of Webb (2011) EWCA Crim 152 and the Scottish case of McAllister (2018) JC 139 in order to persuade the Court that the public interest  could be marked and upheld by the process of prosecution and conviction in and of itself in ‘mercy killing’ cases of this kind. The Defence submitted that there was neither necessity nor any constructive purpose in imposing an immediate custodial sentence on an elderly, frail and mentally disordered woman who poses no risk to anyone. The particular circumstances, the reduced level of culpability arising from her disorder, the lack of enduring physical harm, and the overall mitigation provided grounds for a sentence at the lowest end of the range and for a sentence which could be suspended if full credit were given for a guilty plea. The Defence further submitted that a reasonable and informed member of the public with full knowledge of this case would understand and approve if the Court considered it just and appropriate to exercise mercy in sentencing Mrs Butler.

At the sentencing hearing, notwithstanding written submissions from the prosecution that the appropriate sentence should be a significant sentence of immediate imprisonment, through compelling legal argument and effective advocacy, Mr Newton-Price KC and Mr Akers persuaded Her Honour Judge Morris to impose a standalone suspended sentence of two years’ imprisonment, suspended for two years. The Prosecution has not appealed against this sentence.

James Newton-Price KC is an extremely experienced criminal practitioner and is Head of the Criminal Team in Chambers. He sits as a Recorder in criminal trials on the Western Circuit. He also sits as a Legal Assessor for the Health & Care Professions Tribunal Service (HCPTS) and as a Legally Qualified Chair for the Medical Practitioners Tribunal Service (MPTS).

Timothy Akers is a specialist criminal and regulatory lawyer. He is regularly instructed in serious, sensitive and complex cases involving sexual offences, offences of dishonesty, drugs and violence, and financial crime.

For further information about James Newton Price KC or Timothy Akers’ practice, or to instruct them, please contact Tony Atkins, Senior Clerk or Tony George, Senior Criminal Clerk on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.