Evelyn Joel’s 41-year-old daughter, Eleanor, and her partner Jonathan Costen, aged 43, with last addresses at Cluain Dara, Enniscorthy, had pleaded not guilty to the unlawful killing of Evelyn by neglect in Co Wexford in January 2006. Following a retrial, they were found guilty at Wexford Circuit Criminal Court and were given a two-year suspended sentence by Judge Seán Ó Donnabháin in March 2013 on condition they carry out 230 hours of community service.
Earlier this month, they successfully appealed their convictions and the Court of Appeal was told yesterday morning the DPP will not be seeking a retrial. Counsel for the DPP, Justin Dillon SC, said his client wished to consider the judgment and his instructions this morning were that no retrial would be sought. Giving judgment on March 4, Mr Justice George Birmingham said Evelyn Joel moved in with her daughter in 2004. It was not expected to be a long-term arrangement but would last until Evelyn was offered suitable accommodation by the local authority.
Following a diagnosis of advanced primary progressive multiple sclerosis, Evelyn was offered a long-term hospital bed in Wexford General Hospital but she refused it. In December 2005, her condition deteriorated and ambulance personnel were “greatly disturbed by the condition in which they found their patient”.
The bed she was lying in was filthy, her lower body was covered in faeces, and she had extensive bed sores which were infected and found to contain maggots. Following admission to hospital on January 1, 2006, she immediately made progress in response to treatment, but developed pneumonia and died on January 7.
Eleanor Joel and Jonathan Costen were charged with manslaughter and the case advanced against them was one of neglect while she was living in their home.
Turning to the grounds of appeal, Mr Justice Birmingham said
while there was no indication of criminal conduct, the nature of the HSE’s interaction with Evelyn Joel “gave rise to concern and disquiet”. During the first 10 months of her stay with Eleanor Joel, Evelyn was seen 15 times by a public health nurse or one of her team. However in the final four months, she was not visited by any HSE nurse despite the deterioration of her condition up to that point. “During the final four months of her life the HSE involvement... was limited to leaving nappies outside the house where she resided,” said the judge.
“One would have to say that there were sufficient indications of possible failings on the part of statutory agencies, the minister for health spoke of huge failings, that the matter required investigation,” the judgment stated.
Furthermore, such was the extent of publicity across Co Wexford arising from the first trial, Mr Justice Birmingham said the issues at stake were so emotional, so sensitive and the coverage so massive and intense, their retrial “should have been transferred from Wexford to Dublin”.
He said the court was concerned that a significant step in the trial — the replacement of a juror — was taken in the absence of Ms Joel’s legal advisers. It was an “unsatisfactory state of affairs” and Ms Joel succeeded on this ground.
Mr Costen also succeeded on a ground relating to the trial judge’s directions to the jury on his duty of care.