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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Broughton v R. (Rev 1) [2020] EWCA Crim 1093 (18 August 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/1093.html Cite as: [2021] 1 WLR 543, [2021] 1 Cr App R 3, [2020] WLR(D) 478, [2020] EWCA Crim 1093, [2021] WLR 543, [2021] Crim LR 869, [2021] 2 All ER 819, [2020] Med LR 477 |
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ON APPEAL FROM THE CROWN COURT AT WINCHESTER
The Hon. Mr Justice Goose
T20187042
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON. MR JUSTICE SWEENEY
and
THE HON. MR JUSTICE MURRAY
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CEON BROUGHTON |
Appellant |
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- and - |
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REGINA |
Respondent |
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(instructed by Birnberg Peirce) for the Appellant
Annabel Darlow QC and Simon Jones (instructed by CPS) for the Respondent
Hearing date: 3 June 2020
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Crown Copyright ©
Covid-19 protocol: This judgment will be handed down by the Judge remotely, by circulation to the parties' representatives by email and, if appropriate, by publishing on www.judiciary.uk and/or release to BAILII. The date and time for hand down will be deemed to be 18 August 2020 at 11.00am. The Court Order will be provided to Winchester Crown Court for entry onto the record.
The Lord Burnett of Maldon:
Introduction
Gross Negligence Manslaughter
"In my opinion, the law as stated in [Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and ... it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal."
i) The defendant owed an existing duty of care to the victim.
ii) The defendant negligently breached that duty of care.
iii) At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation.
iv) It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death.
v) The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim.
vi) In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
The elements found in (iii) and (iv) will not need separate consideration or articulation in many cases.
Causation
"To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a substantial contribution to the cause of death. The prosecution's case is that by failing to obtain medical help in time, his breach of duty was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived. The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was needed, what was the likelihood of survival. Are you sure that the failure to obtain medical help at that time was a substantial cause of her death?"
"You may decide that, even if an earlier operation would not have been bound to succeed, the effect of Mr Sellu's negligence was to deprive Mr Hughes of a significant chance of survival and in that sense was a significant contributory cause to Mr Hughes' death. Once again, how big a contribution has to be to qualify as significant is left to your good sense. So, if you decide that Mr Sellu was grossly negligent in his care of Mr Hughes, you must ask yourselves whether the failure to treat him in a proper way significantly contributed to Mr Hughes' death."
"What was critical was that the jury reached conclusions as to such findings as they were sure constituted gross negligence and, in the light of those findings, went on to consider the question of causation, understanding that causation would not be established if the gross negligence was after the time they could be sure that Mr Hughes would have survived."
"The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips' death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point of the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a cause of Sean Phillips' death and, whatever you may think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean's condition became irreversible, I repeat that you must give the defendants the benefits of those doubts".
"I can only answer that by saying that it might have been. Ours is not a positive science. It might have been averted if medical aid had been called in at any earlier stage. I am unable to say whether it probably would. I might say probably, as to whether life might have been prolonged. I cannot say that death would probably have been averted. I think it probable that life might have been prolonged. I can only say probably might, because I did not see the case while living. I am unable to say that life would probably have been prolonged, because I did not see the case during life, had I done so, I might have been able to answer the question."
"It is not enough to shew neglect of reasonable means for preserving or prolonging the child's life, but to convict of manslaughter it must be shewn that the neglect had the effect of shortening life. The medical witness called for the prosecution gave his evidence clearly and well, and under a high sense of his duty and responsibility, and what he stated was, that in his opinion the chances of life would have been increased by having medical advice, that life might possibly have been prolonged thereby, or, indeed, might probably have been, but that he could not say that it would, or indeed that it would probably, have been prolonged thereby. In order to sustain the conviction affirmative proof is required.
This the skilled witness called, and upon whose evidence the matter rests, cannot, from the nature of the case, give and, indeed, properly declines to give. The direction of the learned judge, though right in point of law, is not applicable to the facts proved. The conviction cannot be sustained."
"On appeal, Mr Ellison argued that some jurors might have been sure of gross negligence only at such a late time in the chronology ... that the conviction might have been returned without a consideration of the fact that, by then, the likelihood was that Mr Hughes would still have died. Thus, it was left open to them to convict in relation to a failure to act at a stage in the chronology where they were no longer sure that Mr Hughes would have survived in any event i.e. when causation could no longer be proved. Furthermore, he contends that the judge erred in not directing the jury in accordance with Brown (1984 79 Cr App R 115) that they must all agree as to any particular negligent act or omission before they could move on to decide whether there was gross negligence causative of death."
The Facts
The outline chronology
"... the information I had did not raise any immediate concerns for her. In my experience the majority of people who have a bad trip recover quite quickly, so I did not instigate anything further."
"She layed benive wit. ME,
nettles n thorns,
Enteral bled,
we're her Heart was torn."
At 22.41 and 22.42 the appellant took more live photographs of Louella which showed that her hands were covered in scratches which had not been present in the first video that he had recorded, that she was still making unintelligible sounds, and that her condition appeared to be deteriorating.
The interviews
The expert evidence
"Sudden unexpected death following the use of 2CP, ketamine and MDMA (Ecstasy), with a subsequent prolonged episode of altered behaviour including agitation, physical exertion, restraint and possible positional airway compromise".
"In view of the lack of previously documented deaths from 2CP, the combined effect of three stimulant drugs and the unknown mechanism that resulted in Louella's death, it is not possible to state beyond reasonable doubt that earlier medical intervention would have been able to save Louella's life once she had ingested the 2CP."
In his first report he had put it in similar terms but added "I do believe however that on the balance of probabilities, medical intervention at any time prior to 21.10 is likely to have saved Louella's life." He maintained that position in cross examination but added various descriptions on the chances in answer to questions. He said:
"I say in that report that before 21.10 she had a very good chance of survival, but I wasn't saying that after that time there wasn't. I say that there was still a good chance of survival after that time, I confirmed that that was my opinion. At 21.10 she was still making noises, she was not unresponsive at that point. In my second report I sought to clarify this. In my opinion whilst she was still breathing there was a good chance of survival with treatment."
Submission of no case to answer
"The co-existence of a likelihood that the deceased could be saved with medical assistance and a breach of duty will be for the jury to decide. There is sufficient evidence of both a breach of duty before 21.10 and after that time; there is sufficient evidence that it was likely that the deceased could be saved both before and after that time.
The summing up
"…The breach of duty must have been a substantial contribution to the deceased's death. It doesn't have to be the only cause of death, there were different concurrent causes for the death of the deceased in this case. According to the evidence of the pathologist, Dr Delaney, it was drugs toxicity with a subsequent prolonged period of altered behaviour, including agitation, physical exertion, restraint, and possible positional airway compromise. It was the opinion of Professor Deakin that intervention before it was too late might have saved her, therefore this means that there were several different factors in play, which caused the death of the deceased.
To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a substantial contribution to the cause of death. The prosecution's case is that by failing to obtain medical help in time, his breach of duty was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived. The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was needed, what was the likelihood of survival? Are you sure that the failure to obtain medical help at that time was a substantial cause of her death?
You will recall also, ladies and gentlemen, that Professor Deakin could not say beyond reasonable doubt that the deceased would not have died anyway. He said that at its highest her chances of survival were at 90%, but this was if she had received medical help before 21.10. However, this does not mean that you can't be sure that the breach of duty was a substantial cause of death. As I've already directed, to prove this element of the offence the prosecution must make you sure that the breach of duty was a substantial cause of death, not the only cause. Professor Deakin's opinion was that up to the point of unresponsiveness there was a very good chance of survival, after that time there was still a good chance, but it would have reduced quickly.
You will need to consider his expert evidence with care on this important issue. You will appreciate that Professor Deakin's opinion was strongly challenged by the defence, I will remind you of this when I summarise the evidence. You should also consider the circumstances of how easy or difficult it was to obtain medical help, if it was difficult due to phone signal problems or the layout of the ground, then it may reduce the contribution to the cause of death by the breach of duty, the reverse may be the case if it was easy to obtain medical help. Whilst this is relevant to whether there was a breach of duty, it may also be relevant to the cause of death, if it was very difficult to obtain medical help as opposed to being very easy, the contribution to the cause of death by the breach may become less significant, if it was very easy it may become more significant."
"Well, ladies and gentlemen, you should also bear in mind that, as an expert, Professor Deakin, as indeed of all experts, are not seeking to give evidence of which they are 100% sure or 95% sure, although Professor Deakin referred to 90%. They're there to tell you what their opinion is, and it's for you to decide whether you're sure that, that you can accept that evidence or not. And so it's not simply taking that the expert says that he is not 100% sure so I can't be, you consider this as all expert evidence against all the other evidence that you consider and come to a decision as to whether you are sure that it was a substantial contribution of death or not".
The appeal
"In the light of this evidence, I consider it to be reasonably arguable that the jury could not be any more certain than Professor Deakin and, that being so, causation could not be established to the criminal standard. In my judgement, the evidence in this case is at least arguably distinguishable from the evidence summarised in Misra; and Misra does not establish a principle that causation is always a matter for the jury, whether or not there is evidence to support a finding adverse to the defendant".
Summary of the submissions
The appellant
The respondent
"In our judgment the submission that there was no case to answer on the causation issue was untenable….The causation issue was entirely for the jury. If the submission was upheld, the judge would have usurped its function".
Discussion
"It will be necessary … for you to carefully consider the events, looking closely at the timing of the moving images on the Defendant's phone, between 17.53 and 23.24 and how the deceased appeared. The timing and content of messages between the Defendant and others and evidence of voice calls. It cannot be said that there was a duty of care or a breach of duty at the start, it's the Prosecution's case that as time went on you can be sure that a reasonably competent, prudent and sober person of the Defendant's age and experience would have known that he had created a state of affairs which had become life threatening, and would have appreciated her serious deterioration and obtain medical help for the deceased. It will be for you to decide if or when that time arose. The Defence say that it never arose and that in the circumstances at the time, he did all that was reasonable to help her."
You will have to assess the time from which he was in, in breach and medical aid was needed, what was the likelihood of survival? Are you sure that the failure to obtain medical help at that time was a substantial cause of her death?
"21. Dr Jerreat's opinion was, throughout, clear. His opinion was that the victim had died of neck and stab wounds. He said in re-examination:-
'My opinion is that she has died of the neck and stab wounds and that the cocaine intoxication is not an event, but there are always cases that you cannot completely exclude and in theory these are possibilities. I do not think that has occurred in this case where you have clear bruising, you have a clear action in the stabbing and the removal of the neck. As I was asked, it was not a clean removal, it was not quick, it was very slow and it would have taken some time and this is all while the person is still alive. So it would be highly unusual that you would perform this process just as they were dying of cocaine intoxication.'
22. In our judgment, the judge was correct in refusing to withdraw the case from the jury merely on the basis that Dr Jerreat could not exclude a theoretical or hypothetical possibility that the victim had died from cocaine poisoning. There is ample authority for the proposition that the mere fact that as a matter of scientific certainty it is not possible to rule out a proposition consistent with innocence does not justify withdrawing the case from a jury. Juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. (See Bracewell [1979] 68 Cr App R 44, Dawson [1985] 81 Cr App R 150 and Kai-Whitewind [2005] 2 Cr App R 31 at paragraphs 88, 89 and 90). The Court of Appeal endorsed Boreham J's direction in Bracewell. In that case the defence raised the possibility that the victim had been strangled, recovered and then suffered a heart attack, a sequence of events which could not be ruled out as a matter of scientific certainty. The judge directed the jury not to judge the case scientifically or with scientific certainty but to decide whether, on the whole of the evidence, they were sure. The Court of Appeal endorsed that direction which correctly drew the distinction between scientific proof and legal proof. It pointed out that the medical evidence was only part of the material on the basis of which the jury had to reach a decision."