Artichokes and old lace

Behind the Artichokes, a privately-published book written following a family feud, in which the author had been convicted of criminal damage for poisoning her sister’s Jerusalem artichoke plants with weed-killer, and D H Lawrence’s Lady Chatterley’s Lover, are not works of fiction destined to share literary posterity. Their only common thread is that a jury in a criminal trial has been required to read each book as part of their deliberations. This led to the story of the Behind the Artichokes trial becoming not only local, but national news, with many details of a small world of sibling vegetable-growers’ spite, reminiscent both of English fictions and true stories [1] of poison-pen letters. The Daily Mail captured the essentials in the 12 June headline to its story:

Feuds over wills are more familiar territory for me than criminal cases. Behind the artichokes, the background to this story wasn’t at all unusual — a dispute between middle-aged siblings with a parent or other elderly relative in need of care in the last years of their life, with the argument continuing over the parent’s money and possessions after death. One of my earliest memories of legal practice is waiting for a hearing in one of the Victorian Gothic corridors of the Royal Courts of Justice and overhearing a fragment of conversation between two sisters disputing their mother’s will:

“Those candlesticks aren’t real silver, you know”

“Well, mum never loved you very much anyway”

& I have heard many variations on this theme since. The old age and mortality of parents, particularly the distressing later life loss of mental capacity of a parent, with its sad reversal of the roles of responsibility and care, quite often seems to lead adult children to bring aspects of their childhood selves into their present lives, with vivid perceptions of nursery slights and arguments or parental favouritism or unfairness from decades ago recalled and replayed. Women past menopausal age look in a mirror and glimpse themselves as little girls again, chubby fingers outstretched to clutch a mother’s favourite necklace.

Background

The facts behind the artichokes — in their most beige and neutral form, deliberately omitting the details of what each sister said about any other sister’s behaviour or motives — appear to have been these. Winifred Leeden, a widow, died in April 2014, at the age of 93. She had lived in her last years in a flat in the lower half of a semi-detached house in Broxbourne, Hertfordshire, and suffered from Guillain-Barre syndrome, an auto-immune disorder. She had had five daughters, at least one of whom predeceased her. The dispute was between three of her daughters, all of whom were over 60 at the time of their mother’s death — Lyndsey, Deborah and Gillian, the youngest. In or around 2001, Gillian had moved into a flat which she had owned for some years, and which formed the upper half of the house her mother lived in, and looked after Winifred, including managing her money under some informal arrangement between them. In 2009, when Winifred was in her late 80s, Lyndsey, who had been living in France, moved in with her mother to care for her in her home. Deborah lived nearby and was a frequent visitor. These changes in living arrangements and responsibility for their mother led to a sharp deterioration in the relationship between Gillian and her sisters, and to a complete breakdown of contact between Gillian and Winifred. At some point in or around 2010, Winifred granted lasting power of attorney for her property and affairs to Lyndsey, Deborah and Deborah’s husband, but not to Gillian, and is reported to have told Gillian that she no longer wanted her help and that she should move away. Winifred also made changes to her will, excluding Gillian from benefit under it. Gillian believed that Lyndsey, Deborah and Deborah’s husband were using their lasting power of attorney to make excessive expenditure of Winifred’s funds, and instigated some investigation of this, then applied to the Court of Protection for the appointment of an independent property and affairs deputy to replace the attorneys. Following mediation, the Court appointed an independent deputy. As all such appointments do, the deputyship ended on Winifred’s death. It isn’t clear from the newspaper reports whether there was a legal dispute about Winifred’s will or whether there were continuing arguments about what had happened to her money in her lifetime.

A few weeks after Winifred’s death, on 23 May 2014, some Jerusalem artichokes which Lyndsey was growing in a vegetable patch in the garden were poisoned with weed-killer. This led to Gillian’s prosecution for criminal damage in December 2014. She received a conditional discharge and was ordered to pay £5 compensation and £325 court costs, and the case also reached the newspapers, with that particular headline-writers’ use of the word “grandmother” to suggest a surprising delinquency. It was not the first or the last occasion in which the sisters’ dispute had involved the criminal law — Lyndsey herself had been arrested and accepted a police caution for what seems to have been a criminal damage allegation involving a car belonging to one of Gillian’s tenants, and Gillian was at some point cautioned in relation to the contents of an online blog in which she had written about recent or current family history in 2013.

Behind the Artichokes and the trial

Following the 2014 incidents, Gillian wrote and privately published 150 copies of Behind the Artichokes, a 216 page long book, which she described as “the true story behind the artichokes and a mother’s fight to save her son’s inheritance”, and sent it not only to her sisters, and other family members, but also to neighbours in Hertfordshire and Lyndsey’s new home in Norfolk, town councillors, members of the University of the Third Age, and a vicar. This led to Gillian’s prosecution under the Malicious Communications Act 1988, with a trial commencing in St Alban’s Crown Court in early June 2018. The relevant parts of the Malicious Communications Act for these charges say:

Offence of sending letters etc. with intent to cause distress or anxiety.

(1) Any person who sends to another person —

(a) a letter, electronic communication or article of any description which conveys —

(i) …

(ii) …

(iii) information which is false and known or believed to be false by the sender;

(b) …

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should … cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

The maximum sentence for a conviction on indictment i.e. a Crown Court trial, is two years in prison. The two counts under which Gillian was charged were

(1) Allegations in Behind the Artichokes that Deborah stole £21,000 from Winifred, removed furniture and jewellery from Winifred’s address without consent and abused their mother.

(2) Allegations in Behind the Artichokes that Lyndsey inherited a considerable amount of money from their aunt Barbara Leeden through misdemeanour and also stole £21,000 from their mother, removed furniture and jewellery from her address and abused her.

The trial was set to run for three weeks but ended at the close of the prosecution case on Wednesday June 12 2018, when the judge accepted that there was no case to answer and directed the jury to find Gillian not guilty on both charges. The judge is recorded as having said

“There is evidence (in the book) that the information was false. But there has to be evidence [Gillian] knew or believed it was false. “I have come to the conclusion there is not enough evidence.”

In other words, the specific allegations that Gillian had made about her sisters and their mother and aunt were not true, but there was insufficient evidence for the prosecution to show that Gillian knew or believed the allegations were untrue. The judge also made orders restraining Gillian from contacting her sisters or publishing information about them in print or online, including not permitting the book to be further published or reproduced in the media (I have not included any images of its cover, for this reason). To this extent, the outcome of the trial is precisely the opposite of that of Lady Chatterley’s Lover, which effectively democratised the publication of the book.

So much for the literary posterity of Behind The Artichokes.

The thinking behind the Malicious Communications Act 1988

The legislation under which the case was brought is 30 years old, and came into force following the Law Commission’s 1985 Report on Poison-Pen Letters and draft Malicious Communications Bill. At that date, the common law offence of criminal libel, which consisted of the publication of non-trivial defamatory matter containing “that sort of imputation which is calculated to vilify a man, and bring him into hatred, contempt and ridicule”, and which was later abolished by s73 of the Coroners and Justice Act 2009, was still in force. The Law Commission considered that there was a gap in the law dealing with poison-pen letters which was capable of causing “appreciable social harm”, and should be filled, and stated that they were satisfied that both the incidence (despite a lack of any statistical evidence at all) of poison-pen letters and the distress and anxiety which they caused to their recipients merited the creation of a new criminal offence. Since 1988, s127 of the Communications Act 2003 has come into force, and has been the focus of attention and discussion about the criminality of messages sent using a public electronic communications network i.e. via email or social media.

The Law Commission’s working paper and both their draft Bill and the Act reflect the prominence of the primary offence of a poison-pen letter, which is sending something which is, or which conveys a message “of an indecent or grossly offensive nature”. These were identified as the defining characteristics of a poison-pen letter in the Law Commission’s report, taking the provisional definition from their preceding working paper as:

“a communication, written or otherwise, which is grossly offensive, or of an indecent, shocking or menacing character [and which was sent] for the purpose of causing needless anxiety or distress [to the recipient] or any other person”

The Law Commission considered that most of the cases which ought to be covered by the offence would fall within the description of “indecent, threatening or grossly offensive”. But these are not the elements which formed the charges in the Behind the Artichokes prosecution. In paragraph 3.1 of Part III of the Law Commission’s report, in answer to the question “What Type of Conduct Should the New Offence Penalise?”, they described the “not-uncommon form of malicious communication” which consisted of sending deliberately false information “with the purpose that the recipient should be frightened or distressed”, giving as an example of something “rightly characterised as a poison-pen letter”, if false, and sent in order to cause distress and anxiety - “a letter sent to a married woman stating that her husband, abroad on a business trip, had been killed”. In the detailed analysis of the proposed new offence in the draft Bill, the Law Commission commented (at paragraph 4.19)

“Although it may only be possible in a small number of cases of this kind to prove both the sender’s knowledge or belief and his purpose, we think that such cases should be covered by the offence.”

They noted that it would not be necessary to show that the whole of the communication was of this character, and that the linkage of the nature of the communication and the purpose of causing distress of anxiety was essential. This was reiterated in the course of the Bill’s passage through Parliament: the criteria were “intent and malice”.

The outcome of the Behind the Artichokes trial has certainly vindicated the Law Commission’s prediction of the difficulty of proving these elements of the offence as charged. Can the trial really be said to have been in the public interest? For a bystander, and with hindsight, it seems surprising that a decision was even made to prosecute in this case. The defendant and her sisters are middle-aged and middle-class, with no suggestion of any criminal behaviour made of any of them other than in connection with this family dispute. The prosecution of Behind the Artichokes was not itself concerned with any act of violence to a person, or damage or theft of property. The only killing in the background was of the unfortunate artichokes. The non-family recipients of a privately published book written by a protagonist in a family feud might well have their own view about how much of it to believe, or even to read with any interest in its contents. No-one seems to have suggested that any important principle of free speech was engaged, nor was there any claim of literary merit for the book, or indeed — unlike Lady Chatterley’s Lover — any relevance in literary merit to the issues in the trial.

For an outsider, the greatest harm of publication of the book seems to be excruciating embarrassment for the individuals described in it — something which, however unpleasant, falls rather short of the degree of anxiety and distress the Law Commission had in mind in its example of a woman falsely told that her husband had died.

Sibling care disputes in the Court of Protection

By way of contrast, a recently-published judgment of the Court of Protection (Re HH (attorney’s application for retrospective approval) [2018] EWCOP 13), illustrates how much more suitable a forum it is for doing justice in disputes between brothers and sisters about an elderly parent’s care. The case was essentially a dispute between two brothers, TH and JH, whose relationship had been fraught for very many years. TH, the younger brother, was the attorney responsible for the property and affairs of their 95-year old father, HH, who suffered from Alzheimer’s disease. The case involved the Court in the “incredibly difficult” task of reviewing transfers of money which TH had made, largely without keeping proper records, from his father’s accounts to himself, or for his benefit between 2011 and 2017, amounting to nearly £100,000, and a significant part of which had been spent on the living expenses of his own household in Ireland, and on his own personal expenses. The Court had to identify the elements of the payments which could be said to have been in the father’s best interests, particularly those which compensated TH for care he had provided as a member of the family. The Court approved payments amounting to c.£73,000 and directed that the unapproved payments should ultimately be repaid out of TH’s share of his father’s residuary estate, or as a debt to the estate, if the share of residue was insufficient.

There is one passage in the judgment which has a greater universality about it than the facts and personalities of the particular case:

43. I have read and considered three witness statements from the Applicant, and he gave oral evidence. He accepted that he knew nothing of the duties and responsibilities of being an attorney, nor the roles of the Court of Protection and the Office of the Public Guardian in overseeing that role. He said he was not good with money, that he had been extremely stressed and felt persecuted by the local authority then the OPG’s investigations and subsequent proceedings, reviving long-standing disputes with his brother. He says he has felt personally criticised and under attack, when all he says he has done is seek to do right by his father, at significant personal cost to him and his family. TH gave evidence that his time caring for his father has been extremely hard on the whole family; he has been separated from his wife and children, and finances have been tight, even with the benefit of monies from his father’s accounts. He has no wish to continue to act as his father’s attorney for property and affairs, and agrees that a professional deputy should now be appointed.

44. He accepted that he had prevented his brother from seeing their mother before her death, and that he had also prevented him from seeing their father. He showed the odd flash of anger towards his brother, but in general did not wish to be drawn on the evidently bitter and longstanding enmity between them.

45. The social work and medical professionals who have observed HH have all concluded that the standard of care provided to him when he was in his own home was excellent. There can be no doubt that TH has provided a high standard of care to his father and that providing this has been a considerable commitment on his part. He says frankly in his witness statements that he did not anticipate his father would live for as long as he has; he thought he would be coming over to England to care for him for a few weeks or possibly months, but it has turned out to be years. At various times he has been assisted by other paid carers, but for substantial periods of time he has been at his father’s side round the clock, seven days a week, with little or no respite. There can be no doubt that his efforts in providing care in the home have been of great benefit to his father, but at the cost of a limitation on all aspects of his own life. It is understandable that the responsibility of caring for his father for many years has caused stress and strain on him and members of his immediate family.

These paragraphs show great insight into the way in which care for incapacitated parents imposes and exacerbates burdens in family life, and keeps alive or revives strains in sibling relationships. They also illustrate how these problems can be more sensitively explored and resolved in the written judgment of a specialist civil court, in which names are anonymised, than in too eagerly attempting to criminalise and publicise the unreliable narratives of people who have lived through similar experiences.

Note: I have no personal or professional connection with either of the cases discussed in this posting. All the reported facts and legal materials are in the public domain.

[1] See The Littlehampton Libels, A Miscarriage of Justice & a Mystery about Words in 1920s England, by Christopher Hilliard (Oxford University Press 2017) a marvellous study of a historic example of the blundering limitations of the criminal law in the realm of malicious communications, rooted in a feud between people living in unhappy proximity to each other. For a period in the early 1920s many obscene and abusive anonymous letters were sent to a woman, Edith Swan, who had made a groundless complaint to the NSPCC about her neighbour Rose Gooding’s care of her children, and to some other people in the seaside town of Littlehampton. Hilliard says of those which survive in the National Archives “to read the whole document is to come up against the libels’ nastiness and their humour, their anger and their pathos, their surprises and their monotony” — an excellent and near-universal description of this sort of writing. In a pre-echo of Behind the Artichokes the story also featured the vandalisation of a vegetable patch, with subsequent letters addressed to “Cabbage Leaf Villa”. After four trials in what would now be the Crown Court: firstly, two consecutive private prosecutions for criminal libel by Edith Swan, leading to two convictions and two sentences of imprisonment of the entirely innocent Rose Gooding, an appeal to the then-recently created Court of Criminal Appeal, then one failed public prosecution of Edith Swan herself as the author (she appeared to be far too respectable a person to have used the obscene language in the letters) and finally, one successful public prosecution of Edith Swan, the protagonists disappeared into obscurity for the remainder of their lives. Hilliard quotes Lord Coleridge in the late 1880s saying of criminal libel that “an indictment for libel ought to be something which concerned the general interests of the public, and was likely to create a breach of the peace . . . but when it was clearly an individual squabble between two people. . . it ought not to be a proper subject of indictment.”

This seems no less true of the author of Behind the Artichokes and her dispute with her sisters.