A solicitor jailed earlier this year for wilfully neglecting her 79-year-old mother has had her conviction quashed on appeal. In Kurtz v R, three Court of Appeal judges ruled that Oxford Crown Court erred 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.

According to the judgment, this is the first time the relevant provisions of the Mental Capacity Act had been considered by the Court of Appeal. 

Kurtz, a solicitor specialising in elderly care cases, was convicted in April after her mother, for whom she held enduring power of attorney, was found dead on a sofa at the family's Didcot home in 2014. She was sentenced to 30 months in prison. 

The appeal judgment 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 judgment 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. 

Clare Wade QC and Susan Wright, instructed by the Registrar of Criminal Appeals and Bullivant Law, appeared for Kurtz; Oliver Saxby QC, instructed by the Crown Prosecution Service, for the Crown.