Jamie Stevens was the leader of a gang of white youths, the “Leamington lads”, who were suspected of being involved in a number of racially motivated assaults. A group of black youths, the “Cov demons” including Eddie Walcott, decided to take revenge for these assaults by attacking Mr Stevens and his gang. In the course of the fight, Mr Walcott, who was armed with a knife, stabbed Mr Stevens in the stomach.

Although Mr Steven’s injury was serious, there is medical evidence that it would not have been life-threatening had he received prompt hospital treatment. Mr Stevens, however, refused to go to the hospital because he was disgusted at the prospect of being touched or attended to by black medical staff. He was also afraid that he would be recognised as the perpetrator of various serious assaults on black medical staff near the hospital.

Mr Stevens therefore received no medical treatment and subsequently died of his injury.

Mr Walcott was charged with Mr Stevens’ murder. At trial, Mr Justice Gravel relied on the case of R v Blaue [1975] 1 WLR 1411 in directing the jury.

He directed them to consider that if the initial stab wound could be regarded as the operative cause of Mr Stevens’ subsequent death, then Mr Walcott would be guilty of murder. He further instructed them to disregard Mr Stevens’ refusal to seek medical treatment and his unmeritorious reasons for doing so, if this operative cause was found.

The appeal is brought on the following grounds and is limited to the direction Mr Justice Gravel gave to the jury:

(1) The present case was distinguishable from Blaue which was concerned with situations where the victim had valid reasons for refusing particular medical treatment. Different considerations applied where there was an unreasonable refusal to seek any medical treatment and where the reasons for doing so were unconnected to the nature of the medical treatment.

(2) It was open to a properly directed jury to conclude that Mr Stevens had voluntarily chosen to bring about his death and that his conduct amounted to a novus actus interveniens which broke the chain of causation and relieved Mr Walcott from criminal liability for Mr Stevens’ death.

2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT

BETWEEN:

EDDIE WALCOTT (APPELLANT)

-v-

REGINA (RESPONDENT)

Appearing on 13th January 2020

Submitted by Counsel for the Respondent

In response to the first ground of appeal, Counsel respectfully submits:

1. As per R v Blaue [1975] 1 WLR 1411, an assailant was not entitled to claim that the victim’s refusal of treatment was unreasonable; the thin skull rule applies. Accordingly, Blaue is indistinguishable.

2. Same considerations on legal causation as established in R v Smith [1959] 2 QB 35 apply even when the victim’s refusal is allegedly unreasonable – insofar the appellant’s conduct is a substantial and operative cause, there is causation in law.

In response to the second ground of appeal, Counsel respectfully submits:

1. As established in cases such as R v Blaue [1975] 1 WLR 1411, refusal to have medical treatment necessary to save one’s life does not constitute a break in the chain of causation (a novus actus interveniens).

2. In the present case, there is no break in the causal connection between the stab wound and Mr Stevens’ death. Hence, it was not a misdirection for Gravel J to instruct the jury to disregard Mr Stevens’ refusal to seek medical treatment, meaning the appellant’s conviction should be upheld.

Counsel for the Respondent cites the following authorities:

Cases: 1. R v Blaue [1975] 1 WLR 1411 2. R v Cheshire [1991] 1 WLR 844 3. R v Dear [1996] Crim LR 595 4. R v Smith [1959] 2 QB 35

Counsel respectfully invites the court to dismiss the appeal

Lead Counsel: Ms Charlotte Chan Junior Counsel: Ms Melanie Mills

3 The Weekly Law Reports, November 7, 1975 1411 1 W.L.R. Reg. v. Thames Magistrate, Ex p. Brindle (C.A.) Roskill L.J. A alleged offender is to be dealt with after he has been taken into custody. Though this is correct as a fact, it is by no means conclusive in favour of Lord Gifford's suggested construction of the subsection. It seems to me plain that the purpose of this section is to enable forces to which the Act applies to have control over deserters and absentees without leave from those forces, irrespective of where those persons were at the time they deserted or went absent. What is to happen to those deserters or absentees B after they are taken into custody is a matter for those forces and not for the courts of this country. This is the underlying purpose of this Part of this Act. Lord Gifford referred us to Reg. v. Peterson, Ex parte Hartmann [1969] V.R. 417, a decision of Newton J. in the Supreme Court of Victoria. That was a decision regarding the true construction of the Defence (Visiting Q Forces) Act 1963 of Australia. It is sufficient to say this of this decision: first, it was a decision upon a different statute from that with which we are concerned; secondly, the language of the Australian statute differs in a number of important respects from the language of the Act of 1952. The long title is different; and the section comparable with section 13 of the English Act does not contain any reference to legislation such as the Army Act 1955. It would be out of place in this court to express any view D whether one agreed or disagreed with a decision of a distinguished Com• monwealth judge upon the construction of a Commonwealth statute. I think that decision is clearly distinguishable. Although Lord Gifford was able to point to various statements in textbooks, including Halsbury's Laws of England, 3rd ed., vol. 33, p. 854, and footnotes in Stone's Justices' Manual, 170th ed., vol. 1, p. 1063, to support his submission, I am afraid that, as a result of our decision, those passages will have to be rewritten. I would dismiss the appeal.

ORMROD LJ. I agree with both the judgments which have been delivered in this court and the judgments in the Divisional Court and have nothing to add. I agree that the appeal should be dismissed.

p Appeal dismissed. Solicitors: Huntley, Millard & Co., Bromley; Treasury Solicitor.

A. H. B.

G [COURT OF APPEAL]

* REGINA v. BLAUE

1975 June 23; Lawton L.J., Thompson July 16 and Shaw J J. H Crime—Homicide—Causation—Stab wound penetrating lung— Blood transfusion necessary to save life—Refusal on ground of religious beliefs—Whether stab wound operative cause of death —Whether test of reasonableness applicable The defendant stabbed a young woman of 18 with a knife, which penetrated her lung. She was taken to hospital where she was told that a blood transfusion and surgery were neces• sary to save her life. She refused to have a blood transfusion on the ground that it was contrary to her religious beliefs as

4 The Weekly Law Reports, November 7, 1975 1412 Reg. v. Blaue (C.A.) [1975] a Jehovah's Witness and she died the following day. The j^ cause of death was bleeding into the pleural cavity, which would not have been fatal if she had accepted medical treat• ment when advised to do so. The defendant was charged with murder. The judge, in directing the jury on the issue of causation, said that they might think that they had little option but to find that the stab wounds were still an operative or substantial cause of death when the victim died. The defen• dant was convicted of manslaughter on the ground of dimin- g ished responsibility. On appeal against conviction: — Held, dismissing the appeal, that the death of the victim was caused by loss of blood as a result of the stab wounds inflicted by the defendant and the fact that she had refused a blood transfusion did not break the causal connection between the stabbing and the death; that, since the criminal law did not require the victim to mitigate her injuries, and since Q an assailant was not entitled to claim that the victim's refusal of medical treatment because of her religious beliefs was unreasonable, the jury were entitled to find that the stab wounds were an operative or substantial cause of death. Dicta of Maule J. in Reg. v. Holland (1841) 2 Mood. & R. 351, 352 and Lord Parker C.J. in Reg. v. Smith [1959] 2 Q.B. 35, 42, C.-M.A.C. applied. Reg. v. Jordan (1956) 40 Cr.App.R. 152, CCA. distin- D guished.

The following cases are referred to in the judgment of the court: Reg. v. Holland (1841) 2 Mood. & R. 351. Reg. v. Jordan (1956) 40 Cr.App.R. 152, CCA. Reg. v. Smith [1959] 2 Q.B. 35; [1959] 2 W.L.R. 623; [1959] 2 All E.R. 193, C.-M.A.C. E Steele v. Robert George & Co. (1937) Ltd. [1942] A.C 497; [1942] 1 All E.R. 447, H.L.(E.). The following additional cases were cited in argument: Imperial Chemical Industries Ltd. v. Shatwell [1965] A.C. 656; [1964] 3 W.L.R. 329; [1964] 2 All E.R. 999, H.L.(E.). Oropesa, The [1943] P. 32; [1943] 1 All E.R. 211, C.A. p Rew's Case (1662) Kel. 26. Rex v. Mclntyre (1847) 2 Cox C.C. 379.

APPEAL against conviction. On October 17, 1974, at Teesside Crown Court (Mocatta J.), the defendant, Ronald Konrad Blaue, was acquitted of murder but convicted of manslaughter on the ground of diminished responsibility (count 1), G wounding with intent to do grievous bodily harm (count 2) and indecent assault (count 3). He pleaded guilty to indecently assaulting two other women (counts 4 and 5) and was sentenced to life imprisonment on counts 1 and 2 and to concurrent sentences of 12 months' imprisonment on counts 3, 4 and 5. He appealed against conviction on the ground that the judge had misdirected the jury on causation since the girl's refusal to have a blood transfusion had broken the chain of causation between H the stabbing and her death. The facts are stated in the judgment.

James Comyn Q.C. and Robin Stewart for the defendant. Donald Herrod Q.C. and David Fenwick for the Crown.

Cur. adv. vult.

5 The Weekly Law Reports, November 7, 1975 1413

1 W.L.R. Reg. v. Blaue (C.A.) A July 16. LAWTON L.J. read the following judgment of the court. On October 17, 1974, at Teesside Crown Court after a trial before Mocatta J. the defendant was acquitted of the murder of Jacolyn Woodhead but was convicted of her manslaughter on the ground of diminished responsibility (count 1). He was also convicted of wounding her with intent to do her grievous bodily harm (count 2) and of indecently assaulting her (count 3). He pleaded guilty to indecently assaulting two other women (counts 4 B and 5). He was sentenced to life imprisonment on counts 1 and 2 and to concurrent sentences of 12 months' imprisonment on counts 3, 4 and 5. The defendant appeals with the leave of this court against his con• viction on count 1 and, if his appeal is successful, he applies for leave to appeal against his sentence on count 2. The victim was aged 18. She was a Jehovah's Witness. She professed Q the tenets of that sect and lived her life by them. During the late after• noon of May 3, 1974, the defendant came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. The defendant ran away. She staggered out into the road. She collapsed outside a neigh• bour's house. An ambulance took her to hospital, where she arrived at about 7.30 p.m. Soon after she was admitted to the intensive care ward. D At about 8.30 p.m. she was examined by the surgical registrar who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion. As soon as the girl appreciated that the surgeon was thinking of organising a blood transfusion for her, she said that she should not be given one and that she would not have one. p To have one, she said, would be contrary to her religious beliefs as a Jehovah's Witness. She was told that if she did not have a blood trans• fusion she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so. The prosecution admitted at the trial that had she had a blood transfusion when advised to have one she would not have died. She did so at 12.45 a.m. the next F day. The evidence called by the prosecution proved that at all relevant times she was conscious and decided as she did deliberately, and knowing what the consequences of her decision would be. In his final speech to the jury, Mr. Herrod for the prosecution accepted that her refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the defendant was suffering from _, diminished responsibility. Towards the end of the trial and before the summing up started counsel on both sides made submissions as to how the case should be put to the jury. Counsel then appearing for the defendant invited the judge to direct the jury to acquit the defendant generally on the count of murder. His argument was that her refusal to have a blood transfusion had broken the chain of causation between the stabbing and her death. As an alternative H he submitted that the jury should be left to decide whether the chain of causation had been broken. Mr. Herrod submitted that the judge should direct the jury to convict, because no facts were in issue and when the law was applied to the facts there was only one possible verdict, namely, manslaughter by reason of diminished responsibility. When the judge came to direct the jury on this issue he did so by telling them that they should apply their common sense. He then went on to tell them they would get some help from the cases to which counsel had referred

6 The Weekly Law Reports, November 7, 1975 1414 Reg. v. Blaue (C.A.) 11975] in their speeches. He reminded them of what Lord Parker C.J. had said A in Reg. v. Smith [1959] 2 Q.B., 35, 42 and what Maule J. had said 133 years before in Reg. v. Holland (1841) 2 Mood. & R. 351, 352. He placed particular reliance on what Maule J. had said. The jury, he said, might find it " most material and most helpful." He continued: "This is one of those relatively rare cases, you may think, with very little option open to you but to reach the conclusion that was reached g by your predecessors as members of the jury in Reg. v. Holland, namely, ' yes' to the question of causation that the stab was still, at the time of this girl's death, the operative cause of death—or a sub• stantial cause of death. However, that is a matter for you to determine after you have withdrawn to consider your verdict." Mr. Comyn has criticised that direction on three grounds: first, because Q Reg. v. Holland should no longer be considered good law; secondly, because Reg. V. Smith, when rightly understood, does envisage the pos• sibility of unreasonable conduct on the part of the victim breaking the chain of causation; and thirdly, because the judge in reality directed the jury to find causation proved although he used words which seemed to leave the issue open for them to decide. In Reg. v. Holland, 2 Mood. & R. 351, the defendant in the course D of a violent assault, had injured one of his victim's fingers. A surgeon had advised amputation because of the danger to life through complications developing. The advice was rejected. A fortnight later the victim died of lockjaw. Maule J. said, at p. 352: "the real question is, whether in the end the wound inflicted by the prisoner was the cause of death." That distinguished judge left the jury to decide that question as did the judge in », this case. They had to decide it as juries always do, by pooling their experience of life and using their common sense. They would not have been handicapped by a lack of training in dialectic or moral theology. Maule J.'s direction to the jury reflected the common law's answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself: see Hale's Pleas of the Crown (1800 ed.), F pp. 427-428. The common law in Sir Matthew Hale's time probably was in line with contemporary concepts of ethics. A man who did a wrongful act was deemed morally responsible for the natural and probable consequences of that act. Mr. Comyn asked us to remember that since Sir Matthew Hale's day the rigour of the law relating to homicide has been eased in favour of the accused. It has been—but this has come about _ through the development of the concept of intent, not by reason of a different view of causation. Well known practitioner's textbooks, such as Halsbury's Laws of England, 3rd ed., vol. 10 (1955), p. 706 and Russell on Crime, 12th ed. (1964), vol. 1, p. 30 continue to reflect the common law approach. Textbooks intended for students or as studies in jurisprudence have queried the common law rule: see Hart and Honore, Causation in Law (1959), pp. 320-321 and Smith and Hogan, Criminal Law, 3rd ed. H (1973), p. 214. There have been two cases in recent years which have some bearing upon this topic: Reg. v. Jordan (1956) 40 Cr.App.R. 152 and Reg. v. Smith [1959] 2 Q.B. 35. In Reg. v. Jordan the Court of Criminal Appeal, after conviction, admitted some medical evidence which went to prove that the cause of death was not the blow relied upon by the prosecution but abnormal medical treatment after admission to hospital. This case has

7 The Weekly Law Reports, November 7, 1975 1415 1 W.L.R. Reg. v. Blane (C.A.) A been criticised but it was probably rightly decided on its facts. Before the abnormal treatment started the injury had almost healed. We share Lord Parker C.J.'s opinion that Reg. v. Jordan should be regarded as a case decided on its own special facts and not as an authority relaxing the common law approach to causation. In Reg. v. Smith [1959] 2 Q.B. 35 the man who had been stabbed would probably not have died but for a series of mishaps. These mishaps were said to have broken the chain of B causation. Lord Parker C.J., in the course of his judgment, commented as follows, at p. 42: " It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the C original wounding is merely the setting in which another cause operates can it be said that the death does not flow from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound." The physical cause of death in this case was the bleeding into the pleural ^ cavity arising from the penetration of the lung. This had not been brought about by any decision made by the deceased but by the stab wound. Mr. Comyn tried to overcome this line of reasoning by submitting that the jury should have been directed that if they thought the deceased's decision not to have a blood transfusion was an unreasonable one, then the chain of causation would have been broken. At once the question £ arises—reasonable by whose standards? Those of Jehovah's Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine (2 Mac• cabees, ch. 6, vv. 18-31) or of Sir Thomas More who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church in England. Those brought up in the Hebraic and Christian F traditions would probably be reluctant to accept that these martyrs caused their own deaths. As was pointed out to Mr. Comyn in the course of argument, two cases, each raising the same issue of reasonableness because of religious beliefs, could produce different verdicts depending on where the cases were tried. A jury drawn from Preston, sometimes said to be the most Q Catholic town in England, might have different views about martyrdom to one drawn from the inner suburbs of London. Mr. Comyn accepted that this might be so: it was, he said, inherent in trial by jury. It is not inherent in the common law as expounded by Sir Matthew Hale and Maule J. It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It H does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the casual connection between the act and death. If a victim's personal representatives claim compensation for his death the concept of foreseeability can operate in favour of the wrong-

8 The Weekly Law Reports, November 7, 1975 1416 Reg. v. Blaue (C.A.) [1975] doer in the assessment of such compensation: the wrongdoer is entitled \ to expect his victim to mitigate his damage by accepting treatment of a normal kind: see Steele v. R. George & Co. (1937) Ltd. [1942] A.C. 497. As Mr. Herrod pointed out, the criminal law is concerned with the main• tenance of law and order and the protection of the public generally. A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law. The issue of the cause of death in a trial for either murder or man• slaughter is one of fact for the jury to decide. But if, as in this case, there is no conflict of evidence and all the jury has to do is to apply the law to the admitted facts, the judge is entitled to tell the jury what the result of that application will be. In this case the judge would have been entitled to have told the jury that the defendant's stab wound was Q an operative cause of death. The appeal fails. Appeal dismissed. Application to certify point of law of general public importance involved refused. D Solicitors: Swinburne & Jackson, Durham; Director of Public Prosecutions. J. W.

[COURT OF APPEAL] E

* ROYAL TRUST CO. OF CANADA v. MARKHAM AND ANOTHER

1975 July 16, 17 Megaw and Browne L.J J. and Sir John Pennycuick F Mortgage—Possession—Suspension of order—Order for possession of dwelling house made by registrar—Proviso that no warrant be issued without leave of court—Mortgagors' proposal to sell property to enable sums due to be paid—Whether right to sus• pend order—Administration of Justice Act 1970 (c. 31), s. 36 (1) (2) (b)1—Administration of Justice Act 1973 (c. 15), s. 8 (1) (2)2 G The plaintiff mortgagees brought an action against the defendant mortgagors claiming possession of the mortgaged property, a dwelling house, on the ground of non-payment of instalments of interest due. The county court registrar made an order for possession with the proviso " that there be no warrant issued without leave of the court." The defendants did not give evidence; the court was informed by the plaintiffs that the defendants had put the property in the hands of estate H agents at an asking price which the plaintiffs considered to be excessive. On appeal by the plaintiffs, the judge upheld the registrar's order. On appeal by the plaintiffs: — Held, (1) that on a true construction of section 36 of the Administration of Justice Act 1970 the court had no jurisdiction 1 Administration of Justice Act 1970, s. 36 (1) (2) (b): see post, p. 1420F-H. 2 Administration of Justice Act 1973, s. 8 (1) (2): see post, p. 1421C-R

9 2 Q.B. QUEEN'S BENCH DIVISION. 35 physical or colloquial sense. Having Viscount Hailsham's weighty C. A. authority for the proposition that " premises " is an ambiguous ^959 word which may be used in alternative senses, it seems to me to M & J S be perfectly open to us to say that " premises " in the present PROPERTIES context must have been intended by Parliament to be understood LTD- in its popular or physical sense. Unless this is so, I find it WHITE. difficult to make sense of the proviso. For these reasons, I agree that the appeal must be allowed. Appeal allowed.

Solicitors: A. A. Seller & Co.; Scott, Winter & Go.

M. M. H.

BEGIN A v. SMITH. C.-M. A. C. 1959 Criminal Law—Evidence—Confession—Inducement—Inadmissible con- March 25. fession by private soldier to sergeant-major—Subsequent confession after caution—Whether original inducement spent. (Pj ar Criminal Law—Homicide—Causation—Incorrect treatment before death Streatfeild —Whether break in chain of causation. Hinehdiffe JJ. Causation. The appellant, a private soldier, was charged with the murder by stabbing of a soldier of another regiment during a barrack-room . fight. Immediately after the fight the appellant's regimental sergeant-major put his company on parade and indicated that the men would be kept there until he learnt who had been involved in the fighting. At the trial the judge-advocate admitted in evidence a statement made by the appellant to the sergeant-major at that parade, confessing to the stabbing. Evidence was also given of a subsequent confession made the following day to a sergeant of the Special Investigation Branch after a caution had been adminis tered. The deceased man had received two bayonet wounds, one of which pierced the lung and caused haemorrhage. While being carried to the medical reception station for treatment he was dropped twice. At the reception station he was given treatment which was subsequently shown to have been incorrect. The appellant was convicted and appealed on the grounds, inter alia, that the alleged confessions were wrongly admitted in evidence and that the court was not properly directed as to causation: — Held, (1) that the confession obtained by the regimental sergeant- major was tainted by threat or inducement and was inadmissible. (2) That if the threat or promise under which the first state ment was made still persisted when the second statement was made, then that statement also was inadmissible; only if the time-limit between the two statements, the circumstances existing at the time

10 36 QUEEN'S BENCH DIVISION. [1959]

C.-M. A. C. and the caution were such that it could be said that the original lq_(. threat or inducement had been dissipated could the second statement be admitted as a voluntary statement; in the present case the effect EBQINA of the original inducement was spent and the second statement was i>. admissible. SMITH. Dicta of Taunton j in Bex v Meynell (1834) 2 Lew.C.C. 122, 123; Patteson J. in Beg. v. Sherrington (1838) 2 Lew.C.C. 123, 124; Whiteside C.J. in Beg. v. Doherty (1874) 13 Cox C.C. 23, 24; Denman J. in Beg. v. Bosa Bue (1876) 13 Cox C.C. 209, 210 applied. (3) That, as at the time of death the original wound was still an operating and a substantial cause, death could properly be said to be the result of the wound, albeit that some other cause also operated. Dictum of Lord Wright in The Oropesa [1943] P. 32, 39; [1943] 1 All E.R. 211; Minister of Pensions v. Chennell [1947] K.B. 250; [1946] 2 All E.R. 719 applied. Beg. v. Jordan (1956) 40 Cr.App.R. 152 distinguished.

APPEAL against conviction. The appellant, Thomas Joseph Smith, a private soldier in the King's Eegiment, took part in a fight between a company of , his regiment and a company of the Gloucestershire Kegiment, who were sharing barracks in Germany, on the night of April 13, 1958. Three men of the Gloueesters received stab wounds. One of them subsequently died. Immediately after the fight a regimental sergeant-major of the King's Eegiment put his company on parade and indicated that it was his intention to keep them there until he learnt who had been involved in the fighting. Nobody stepped forward, and he then addressed each man personally. He was told by the appellant that he had been in bed at the relevant time. The sergeant-major then said, in effect, that he would not leave until he got an answer, and the appellant stepped forward and con fessed to the stabbing, which he said he had done with a bayonet which was by a bed in the barrack-room. The next day a sergeant from the Special Investigation Branch, having cautioned the appellant, referred to his earlier confession, and the appellant then made a statement admitting the stabbing. The appellant was convicted of murder at a general court- martial and was sentenced to imprisonment for life. He appealed on the ground that the confessions were wrongly admitted in evidence.

Boderic Bowen Q.G. and H. K. Woolf for the appellant. On the question of the admissibility of evidence relating to the first

11 2 Q.B. QUEEN'S BENCH DIVISION. 37 confession, the position of a soldier on parade is analogous to C.-M. A. C. that of a man in custody; he is not entitled to leave the parade. 1959 The relationship of the individuals concerned is also relevant: in ~ this case one was a regimental sergeant-major and the other was „, a young soldier in his regiment. In all the circumstances it was SMITH. wrong of the judge-advocate to rule that the admission made at the parade was a voluntary admission and that evidence relating to it was admissible. [Counsel was stopped on this point.] On the assumption that the first admission was inadmissible, the whole proceedings were tainted by reason of what the regi mental sergeant-major said at the parade. No objection was made at the trial in relation to the second admission, because the judge-advocate ruled that the first confession was admissible, but at the outset of the interview during which the second admission was made, the sergeant of the Special Investigation Branch faced the accused with the admission he had made to his regimental sergeant-major. The object of a caution is to place a man in the position of knowing that he is not obliged to say anything. In this case the court has to be satisfied that the effect of the threat made by the regimental sergeant-major had been dissipated before the second admission was made, and that the fear which brought about the first admission no longer persisted in any way: Rex v. Meynell1; Reg. v. Sherrington2; Rex v. Knight and Thayre 3; Reg. v. Doherty *; Reg. v. Rosa Rue.5 It is impossible to say that once the parade was dismissed and the man was put in custody the inducement or threat had gone. The continuing inducement was that the accused had been ordered to confess by his regimental sergeant-major, who was in authority over him, and that order remained. On the question of causation, the court must be satisfied that the treatment subsequent to the wounding was normal. In this case there was abnormal treatment. Causation is a question of fact, and whether there has been a break in the chain of causation is a matter for the court. The issue should have been put to the court by the judge-advocate on the basis of Reg. v. Jordan.6 The court must be satisfied that the death was a natural conse quence and was the sole consequence of the wound and flowed directly from it. First it must be considered whether immediately after the wounding the deceased man might have survived, and

1 (1834) 2 Lew.C.C. 122. •» (1874) 13 Cox C.C. 23. 2 (1838) 2 Lew.C.C. 123. s (1876) 13 Cox C.C. 209. 3 (1905) 21 T.L.K. 310; 20 Cox e (ig56) 40 Cr.App.E. 152. C.C. 711.

12 38 QUEEN'S BENCH DIVISION. [1959]

C.-M. A. C. if his chances of survival were removed by the treatment he was 1959 given, death did not result from the wound. The function of T the judge-advocate in a case of this kind is to give a careful fl. summing-up, pointing out that the court must be satisfied that SMITH. there was no break in the chain of causation, giving some guidance on what constitutes a break, and then indicating the evidence on which this issue should be determined; in this case the judge-advocate should have said in effect that after the wound had been sustained there was a possibility that the haemorrhage would stop, and he should have posed the question whether that possibility was removed by what amounted to abnormal treat ment. The directions of the judge-advocate were inadequate on this point. [Counsel referred to Reg. v. Ledger7 and Thabo Meli v. The Queen.*] E. Garth Moore for the Crown. On the question of evidence relating to the first admission, if this was inadmissible it was so presumably because the accused was enforced by a threat. The observations of the regimental sergeant-major were not directed to the accused alone, but to a whole company and were mixed up to a great extent with exhortation. The sanction for not answering (merely to keep some people out of bed and on parade longer) was trivial; it was almost an abuse of language to call it a threat in circumstances such as these. Beg. v. Harris-Rivett9 showed what exercised the minds of the court in applying the Judges' Eules in military matters. On the question of causation, if what happened was a natural, probable and foreseeable consequence of what was done, anything coming in between was not truly a novus actus interveniens: Haynes v. Harwood.10 Even the wrongful act of a third party, if it is something which should reasonably be anticipated, will not break the chain of causation. Applying the general principle to the facts of this case, if a person is stabbed in the middle of a general affray it must be expected that he is not going to be treated in the best possible way at the most immediate moment. [Counsel referred to The Oropesa.11]

LORD PARKER C.J. stated the facts and continued: The court is quite clear that while there was nothing improper in the action

i (1862) 2 P. & F. 857. i° [1935] 1 K.B. 146; 51 T.L.E. s [1954] 1 W.L.E. 228; [1954] 1 100. All E.E. 373. » [1943] P. 32; [1943] 1 All E.E. 9 [1956] 1 Q.B. 220; [1955] 3 211. W.L.E. 823; [1955] 3 All E.E. 567.

13 2 Q.B. QUEEN'S BENCH DIVISION. 39 taken by the regimental sergeant-major, the evidence of what C.-M. A. C. took place was clearly inadmissible at the prisoner's trial. What lg5g the sergeant-major did might well have been a very useful course of action in order to enable further inquiries to be made, but „ the court is satisfied that if the only evidence against the SMITH. prisoner was a confession obtained in those circumstances, it would be quite inadmissible at his trial. It has always been a fundamental principle of the courts, and something quite apart from the Judges' Rules of Practice, that a prisoner's confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court has been at pains to hold that even the most gentle, if I may put it in that way, threats or slight inducements will taint a confession. To say to all those on parade, " You are staying here and are " not going to bed until one of you owns up " is in the view of this court clearly a threat. It might also, I suppose, be looked upon as an inducement in that the converse is true, " If one of " you will come forward and own up, the rest of you can go " to bed "; but whichever way one looks at it, the court is of opinion that while the action was perfectly proper and a useful start no doubt to inquiries, evidence in regard thereto was clearly inadmissible. The matter, however, does not rest there because at about 7.30 the next morning Sergeant Ellis from the Special Investiga tion Branch came down to make inquiries, and he, when he first saw the appellant, gave him the usual caution. He, however, went on to refer then to what had happened the night before. Apparently after administering the caution, he said, " There was " a disturbance last night in a barrack-room in Polish Barracks. " I understand that after the disturbance you admitted to your " R.S.M. that you had been involved and that you stabbed " three men of the Gloucestershire Regiment." Apparently Sergeant Ellis by then had been told that three men were involved. The prisoner replied: " Yes, I am not denying it. I " stabbed three of them all right." He was then asked if he wished to make a statement. He said: "Yes." A written caution was then made which the prisoner signed, and there followed a statement which I need not read, but which admitted that he had stabbed about three of them altogether with a bayonet which he found on the floor of the room. It is urged by Mr. Bowen on his behalf that the original taint in the confession given to the sergeant-major really per sisted in these later confessions, both oral and in writing, and

14 40 QUEEN'S BENCH DIVISION. [1959]

C.-M. A. C. in particular he points to the fact, as I have said, that Sergeant ^59 Ellis at the outset referred 'to what had taken place or what was said to have taken place the evening before. Mr. Bowen e- also referred us to a number of cases. It is unnecessary to refer SMITH. to them in detail. He starts with Rex v. Meynellx in 1834, where in regard to a second confession Taunton J. said2: "I " am clearly of opinion that it is not receivable; it being im- " possible to say that it was not induced by the promise which " the constable made to her in the morning." In other words, he was saying that the second statement was inadmissible in that a promise made when the first statement was given was still in operation' when the second statement was given. To the same effect was the opinion of Patteson J. in Sherrington's case,3 where he said: '' There ought to be strong evidence to show " that the impression under which the first confession was made, " was afterwards removed, before the second confession can be " received. I am of opinion, in this case, that the prisoner must " be considered to have made the second confession under the " same influence as he made the first; the interval of time being " too short to allow of the supposition that it was the result of " reflection and voluntary determination." I should observe that in neither of those cases was a caution administered before the second statement was obtained. He also refers to an Irish case of Reg. v. Doherty,* where Whiteside C.J., in ruling on the admissibility of the second state ment, said *: " The judges have held that it must be shown that " the prisoner thoroughly understood that he could expect no " gain from a confession. The subsequent caution must be shown " to have had the effect of removing all such expectation from "the prisoner's mind." Again, in Reg. v. Rosa Rue, Denman J. said 6: " There are cases which hold that a confession once " rejected on the ground that it was made under an inducement " does not become admissible merely from the fact that it was " again made to some other person who has not held out an " inducement, the inducement being deemed to be a continuing " one. But I am not at this moment aware of any case in which " it has been held that, where the person who held out the " inducement is absent, then a confession made to a third party " is not admissible, no fresh inducement having been held out. " The general principle is clear, that if it is made out to the

i (1834) 2 Lew.C.C. 122. * (1874) 13 Cox C.C. 23. = Ibid. 123. s ibM. 24. » (1838) 2 Lew.C.C. 123, 124. « (1876) 13 Cox C.C. 209, 210.

15 2 Q.B. QUEEN'S BENCH DIVISION. 41

" satisfaction of the judge that the statement was not made C.-M. A. C. " voluntarily, it is not admissible. It is not merely a question X959 "as to whom the confession is made or when it is made; but ~~ ■ "it is a matter in which you have to get at the mind of the „. " prisoner, and see whether or not it is probable that the con- SMITH. " fession was made voluntarily, in the proper sense of the word." Having consulted Kelly L.C.B., Denman J. held on the facts of that case that the second statement was so connected with the original inducement as to be inadmissible. The court thinks that the principle to be deduced from the cases is really this: that if the threat or promise under which the first statement was made still persists when the second statement is made, then it is inadmissible. Only if the time- limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement. In the present case the judge-advocate never had to consider or rule on this second statement. Having admitted the first statement, there was no question on that basis but that the second statement must be also admissible. Accordingly, he never had to rule on the question of admissibility. He never had to exercise any discretion in the matter, and there was no occasion for his leaving it to the court as to the value or weight to be attached to the confession. This court, however, is of the clear opinion that the second statement was admissible. No doubt the opening reference to what it was said he had said to the regimental sergeant-major put the appellant in a difficulty. No doubt it was introduced by Sergeant Ellis in the hope that thereby he might get a continued confession; but it is clear that the effect of any original inducement or threat under which the first statement was made had been dissipated. Quite apart from the fact that the caution was given and given twice, some nine hours had elapsed and the whole circumstances had changed. The parade had ended. The rest of the company had gone to bed. The effect of the threat or the inducement was spent. On those grounds this court has come to the conclusion that the oral and written statements made to Sergeant Ellis were clearly admissible. The second ground concerns a question of causation. The deceased man in fact received two bayonet wounds, one in the arm and one in the back. The one in the back, unknown to anybody, had pierced the lung and caused haemorrhage. There

16 42 QUEEN'S BENCH DIVISION. [1959]

C.-M. A. C. followed a series of unfortunate occurrences. A fellow-member 1959 of his company tried to carry him to the medical reception ~ station. On the way he tripped over a wire and dropped the „, deceased man. He picked him up again, went a little farther, SMITH. an(j fe]} apparently a second time, causing the deceased man to be dropped onto the ground. Thereafter he did not try a third time but went for help, and ultimately the deceased man was brought into the reception station. There, the medical officer, Captain Mill ward, and his orderly were trying to cope with a number of other cases, two serious stabbings and some minor injuries, and it is clear that they did not appreciate the serious ness of the deceased man's condition or exactly what had happened. A transfusion of saline solution was attempted and failed. When his breathing seemed impaired he was given oxygen and artificial respiration was applied, and in fact he died after he had been in the station about an hour, which was about two hours after the original stabbing. It is now known that having regard to the injuries which the man had in fact suffered, his lung being pierced, the treatment that he was given was thoroughly bad and might well have affected his chances of recovery. There was evidence that there is a tendency for a wound of this sort to heal and for the haemorrhage to stop. No doubt his being dropped on the ground and having artificial respiration applied would halt or at any rate impede the chances of healing. Further, there were no facilities whatsoever for blood transfusion, which would have been the best possible treatment. There was evidence that if he had received immediate and different treatment, he might not have died. Indeed, had facili ties for blood transfusion been available and been administered, Dr. Camps, who gave evidence for the defence, said that his chances of recovery were as high as 75 per cent. In these circumstances Mr. Bowen urges that not only was a careful summing-up required but that a correct direction to the court would have been that they must be satisfied that the death of Private Creed was a natural consequence and the sole conse quence of the wound sustained by him and flowed directly from it. If there was, says Mr. Bowen, any other cause, whether resulting from negligence or not, if, as he contends here, some thing happened which impeded the chance of the deceased recovering, then the death did not result from the wound. The court is quite unable to accept that contention. It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can

17 2 Q.B. QUEEN'S BENCH DIVISION. 43 properly be said to be the result of the wound, albeit that some C.-M. A. C. other cause of death is also operating. Only if it can be said that 1959 the original wounding is merely the setting in which another cause - operates can it be said that the death does not result from the v. wound. Putting it in another way, only if the second cause is SMITH. so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. There are a number of cases in the law of contract and tort on these matters of causation, and it is always difficult to find a form of words when directing a jury or, as here, a court which will convey in simple language the principle of causation. It seems to the court enough for this purpose to refer to one passage in the judgment of Lord Wright in The Oropesa, where he said 7: " To break the chain of causation it must be shown that there is " something which I will call ultroneous, something unwarrant- " able, a new cause which disturbs the sequence of events, " something which can be described as either unreasonable or " extraneous or extrinsic." To much the same effect was a judgment on the question of causation given by Denning L.J. in Minister oj Pensions v. Chennell.* Mr. Bowen placed great reliance on a case decided in this court of Reg. v. Jordan, and in particular on a passage in the headnote which says9: " . . . that death resulting from any " normal treatment employed to deal with a felonious injury may " be regarded as caused by the felonious injury, but that the " same principle does not apply where the treatment employed is " abnormal." Beading those words into the present case, Mr. Bowen says that the treatment that this unfortunate man received from the moment that he was struck to the time of his death was abnormal. The court is satisfied that Jordan's case was a very particular case depending upon its exact facts. It incidentally arose in this court on the grant of an application to call further evidence, and leave having been obtained, two well- known medical experts gave evidence that in their opinion death had not been caused by the stabbing but by the introduction of terramycin after the deceased had shown that he was intolerant to it, and by the intravenous introduction of abnormal quantities of liquid. It also appears that at the time when that was done the stab wound which had penetrated the intestine in two places had mainly healed. In those circumstances the court felt bound

' [1943] P. 32, 39. 0 (1956) 40 Cr.App.E. 152. 8 [1947] K.B. 250.

18 44 QUEEN'S BENCH DIVISION. [1959]

C.-M. A. C. to quash the conviction because they could not say that a 1959 reasonable jury properly directed would not have been able on that to say that there had been a break in the chain of causation; „ the court could only uphold the conviction in that case if they SMITH. were satisfied that no reasonable jury could have come to that conclusion. In the present case it is true that the judge-advocate did not in his summing-up go into the refinements of causation. Indeed, in the opinion of this court he was probably wise to refrain from doing so. He did leave the broad question to the court whether they were satisfied that the wound had caused the death in the sense that the death flowed from the wound, albeit that the treat ment he received was in the light of after-knowledge a bad thing. In the opinion of this court that was on the facts of the case a perfectly adequate summing-up on causation; I say " on the facts "of the case " because, in the opinion of the court, they can only lead to one conclusion: a man is stabbed in the back, his lung is pierced and haemorrhage results; two hours later he dies of haemorrhage from that wound; in the interval there is no time for a careful examination, and the treatment given turns out in the light of subsequent knowledge to have been inappropriate and, indeed, harmful. In those circumstances no reasonable jury or court could, properly directed, in our view possibly come to any other conclusion than that the death resulted from the original wound. Accordingly, the court dismisses this appeal.

Appeal dismissed.

Solicitors: Registrar, Courts-Martial Appeal; Director, Army Legal Services. J. D. P.

C. A. UNION NATIONALE DES COOPEEATIVES AGEICOLES DE CEBEALES v. EOBEET CATTEEALL & CO. LTD. I95y Mar. 13. [1958 M. No. 1107.] Lord Evershed M.R. and earc.t 1' Arbitration, — Award — Enforcement — Foreign award — Unenforceable locally without order of local court—Whether " final "—Arbitration Act, 1950 (14 Geo. 6, c. 27), ss. 26, 36, 37. By an agreement in French made in Paris, dated August 31, 1956, the appellants agreed to sell to the respondents a quantity of

19 Page 1

Official Transcripts (1990-1997)*

R v Dear

[1996] Lexis Citation 02

[1996] Crim LR 595

(Transcript: John Larking)

COURT OF APPEAL (CRIMINAL DIVISION)

ROSE LJ, HIDDEN, BUXTON JJ

14 MARCH 1996

S Solley QC and P Guest for the Appellant; N Ellison for the Crown

ROSE LJ

(reading the judgment of the Court): On 15 March 1995 at the Central Criminal Court this appellant was convicted by the jury before HHJ Gordon of murder and sentenced to life imprisonment. A co-accused called Boylan had been tried for murder in January 1990 and acquitted. The appellant now appeals against his conviction by leave of the single judge.

Prior to the time of the offence the appellant and the victim, a man called McAuley, had been drinking companions. The appellant had a 12-year-old daughter who resided with him. On 16 April 1989 she alleged that the victim had sexually interfered with her. The prosecution case was that, as a result of those allegations, the appellant, armed with a stanley knife, confronted McAuley, slashing him repeatedly, so that two days later he died as a result of the wounds then inflicted.

20 Page 2

The appellant did not give evidence before the jury. His case through counsel was that he had been provoked, but, in any event, the chain of causation had been broken between his conduct and the ultimate death because of the victim's behaviour in committing suicide by reopening or, the wounds having reopened themselves, failing to take steps to staunch the blood which flowed following the reopening of the wounds.

There was evidence for the prosecution from a woman called Ann Maher that the girl had visited her on the afternoon of 16 April and made complaints of the kind which we have identified against the victim. At that stage the appellant was summoned and the girl repeated those allegations to him. He became very upset and said that he would give the victim a good hiding. Shortly afterwards he left with the co-accused who, as we have said, was acquitted.

At about 3 pm that same afternoon the appellant and co-accused arrived at the home of a man called Smyth and there obtained a stanley knife. The appellant said words to the effect that he was going to cut the victim. He and the co-accused left some ten minutes or so later.

At about 8 pm they arrived at the flat of man called Flanagan, where McAuley was then staying. They smelt of drink, complained about molestation of the appellant's daughter and went into the premises. Flanagan left to buy some cigarettes. At that stage McAuley was lying on his bed, where he had been asleep all afternoon as a result of a lunch-time drinking session. Flanagan was away for some four or five minutes and when he returned the appellant and co-accused had gone. The victim was lying on his bed with facial cuts and there was a great deal of blood about, both on the victim and on the walls of the room. Flanagan wanted to call an ambulance but McAuley more than once was adamant that this should not be done. Together they wiped the wounds with a towel and put plasters on the cuts, which seemed to stop the bleeding.

At about 8.30 pm on the same evening McAuley was seen in a local shop with a towel draped round his face, which was seen to be badly cut but had dried blood upon it. He bought a bottle of vodka.

About 10 pm that evening the lady who lived below another flat where the deceased stayed from time to time, and where indeed ultimately he was found, heard a stumble and a bang which may or may not have been him returning to those premises.

His body was ultimately found at 9 am of Wednesday 21 April. There were signs that after he had died his body had been moved.

A postmortem was carried out by Dr Crompton who gave evidence before the jury. His conclusion was that the time of death was between about six hours before and six hours after 11 am on Tuesday the 18th. He described the various cuts, one of which (described as the fifth wound) had severed a main artery. The cause of death was blood loss due to multiple wounds. There was a minor injury to the back which appeared rather fresher than the head and facial injuries. Dr Crompton said the victim would have survived the attack with the stanley knife had his injuries been properly treated. He said that, after initial bleeding, a degree of healing may have ensued, either from pressure or from the artery itself being in spasm, and either way bleeding might have stopped. But bleeding could restart spontaneously when such spasms as had occurred wore off, or where there had not been sufficient clotting of the blood to staunch the flow of blood, or where the clotting had been jarred in some way either accidentally or deliberately.

A note (which was exhibit 10) was found by the body. It had apparently been written, not all at one time, by the deceased. It was referred to by a police officer as a suicide note. It contained its phrase: "I cut myself up". There was reference to a betting slip with #500 to be collected; there was reference to how the writer wished

21 Page 3

to be buried; and there were certainly other indications in that document that the victim contemplated that he was about to die.

The case on causation advanced by the defence was, as we have indicated, that the deceased had or may have committed suicide by deliberately reopening his wounds or failing to tend them when they had reopened, and that he may have done so for a reason unconnected with the defendant's conduct, in particular, shame at his own behaviour in relation to the girl. The prosecution disputed that that was a finding which, on the evidence before them, the jury were entitled to reach, having regard to the fact that there was no evidence of the deceased having been of a suicidal nature, or indeed that he had been told of the motive for the defendant's attack on him. Furthermore, having regard to his horrific facial injuries (as is apparent from the photographs before the Court) he was likely to be permanently disfigured and this was as likely a reason as any for suicide. All those factors, suggested the prosecution, pointed away from a motive for suicide unrelated to the defendant's conduct.

The reason why the trial did not take place until it did was that the appellant had been out of the country and was ultimately extradited from Greece in June 1994, his co-accused having, as is implicit in what we have already said, returned to this country prior to that and been tried and acquitted.

The material part of the summing-up starts at page 10B of the transcript and is in these terms:

"Question number two is did the act or acts of the defendant cause the death of McAuley? That is as you can appreciate a matter that a lot of time has been spent on, not surprisingly in this case. Let me tell you what the law says about causing the death of someone else. A person causes someone else's death if; firstly, the injuries that he inflicts are an operating and significant cause of the death that follows. In deciding whether they are operating and significant the fact that a person either fails or decides not to obtain medical treatment is irrelevant: that cannot absolve somebody from the consequences of their action. If the position is that the wounds inflicted by the defendant untreated were in fact such a cause of death, an operating and significant one, then the defendant would have caused that death. Operating and significant does not mean the only cause of death. It does not even mean the main cause of death. Provided that what the defendant did was not an insignificant cause then he would have caused the death. It has to be a cause that is more than insignificant. If it is then it causes the death.

Looking at the position here, for example, and I am not trespassing into your area of finding of facts, but I have to give you some examples to try to help you and there is no suggestion that this is right or wrong. If McAuley, for example, by bumping or rubbing; or drinking; or taking Anadin; or any combination of any of those, unintentionally reopened the wounds that had been caused by the defendant and as a result of that he bled to death, you may think --though it is ultimately for you -- that the original wounding would be an operating and significant cause of the death that followed. So there is that way in which a person can cause another's death.

You also cause another person's death in law if as a result of your unlawful and deliberate acts the deceased, McAuley, takes actions himself which causes his own death, provided you are satisfied that he would not have taken that action had it not been for the unlawful and deliberate acts.

Turning once again to the issues we have here. You appreciate that the Crown say there is no question of any suicide or assisting his own death here and you have heard Mr Heslop's arguments. Mr Solley says it is obvious that that is what happened. So you have two fairly extreme views there. I am not dealing with argument, that is not my role, I am dealing with the law. If you conclude that McAuley at least may have taken steps which caused his own death, for example, deliberately reopening the wounds, if you are satisfied

22 Page 4

that he would not have done that, would not have taken such steps if the defendant had not attacked and wounded him, if the only reason he did it was because of the attack then the defendant would have caused his death even though the deceased himself assisted therein. If you come to the conclusion that he might have taken his own life in any event whether or not he had been cut in the way that he was, for example, because of shame over Bernadette, if you come to the conclusion that he did or may have participated in his own demise and did so for a reason other than the defendant's attack upon him then of course the defendant would no longer be responsible. It would then be a decision of McAuley based not upon the actions of the defendant but for other reasons, and clearly on any view you may think it would not be therefore, the attack, an operating and significant cause. So there, as I say, either a directly operating or significant cause, the wounding, or if it leads to the deceased taking action himself still a cause if you are satisfied that the deceased would not have done it except for the attack. There is causation."

At page 41B of the transcript the judge said this:

"I merely add to that, if you think that it may be that he did it through shame then the defendant would not have caused the death: that is an issue for you. If it may be shame then the causation link would be broken and you would say, 'No, we are not satisfied that it caused the death'. If, on the other hand you are satisfied either that what he caused was itself an operating and significant cause of death or what McAuley did was as a direct result of it then as I have set down there that would be causing the death of McAuley."

After the jury had retired they sent a question which the judge dealt with at page 47F of the transcript:

"You ask:

'If the victim reopens the wounds himself can this be classed as a break in the chain of events?'

Looking at what I have called the skeleton direction it seems to me that you are at two B. In those circumstances and solely for the purposes of answering this question I will assume that you are at the stage of considering whether he at least, that is to say McAuley, may himself have taken action to reopen the wounds. If you are of that view you then have to go on to ask yourselves whether you are satisfied of two matters; firstly, that he took that action because of the wounds that the defendant had inflicted on him; secondly, you have to be satisfied that he would not have done so unless he had been wounded."

The member of the jury said, "Could you repeat that?" and the judge:

"Certainly. Firstly, you have to be satisfied that he took that action because of the wounds inflicted upon him by the defendant; secondly, that he would not have taken that action without having been thus wounded. If you are satisfied about both those matters then it is open to you to conclude the chain of causation exists and the defendant in so wounding him caused his death. If you are not satisfied about either of those matters then that would break the chain of causation and you would go on to consider causing grievous bodily harm. I hope that clears that up. If you would like to retire again please."

Then the jury went out. Junior counsel for the defendant invited the judge to repeat the direction which he had given in the course of his summing up in relation to shame but the judge declined to do so.

23 Page 5

A number of grounds are advanced in the grounds of appeal. It is submitted that the judge should not have left the case for the jury's consideration because there was insufficient evidence for them to consider. It is said -- and this is at the heart of the appeal -- in the submissions made by Mr Solley to this Court, he having appeared on behalf of the defendant also in the court below, that the judge erred in ruling that he would not leave to the jury the offence of extraordinary self neglect. It is said in the grounds of appeal that in modern times the chain of causation between a wound and death may be broken if the deceased rationally decides not to take reasonable and available medical steps to prevent his death. It is said that the judge misdirected the jury in the passages which we have read. It also said that the judge in dealing with the jury's question, in the terms which we have recited, dealt with the matter in an inappropriate and inaccurate way.

The submission is made in the grounds -- and to this we shall return in a little more detail in a moment -- that the suicide of the deceased would have been a novus actus interveniens whether or not he had reopened healing wounds or whether he had caused further additional injuries to himself which brought about his death, and the only circumstance in which his suicide would not have been a novus actus interveniens would have been if the deceased had his mind so affected by the attack as to commit suicide, his mental balance being disturbed.

In relation to the facts, Mr Solley submits that the bleeding must have effectively stopped by the time he went into the local shop with the towel round his head on the Sunday evening and it must have restarted at some time on the following Tuesday, some 36 hours later. The note written by the deceased must have been written in two or three episodes before most of the blood got on to it. The reopening of the wound, submits Mr Solley, is demonstrated to have occurred when the appellant's head must have been some 40 inches above the bed because sprayed blood on the adjacent wall in a downward direction could only have occurred had the head been above that level. The probability is that the note written by the deceased shows what was to happen, namely death; most of the blood was on the note after it was written. It is to be observed in that connection that the evidence of Dr Crompton was certainly to the effect that some of the blood had got on to the note after it had been written. Mr Solley submits that the terms of the note show, not merely that death was anticipated, but that the deceased himself contemplated death by his own hand.

Against that background Mr Solley makes a number of legal submissions. First, he says that "voluntary" suicide (by which he contrasts suicide where someone throws themselves, for example, from a moving car through fear of attack) is a novus actus interveniens. A suicide where the deceased can be taken to know and understand the nature of his act, and thus exercise a choice, is a novus actus, even if it follows upon an attack upon the victim. The reason for the suicide, says Mr Solley, is immaterial -- in the sense of whether or not it is linked to any other physical event -- although some other physical event may trigger it, save where it so follows an assault that it is properly to be regarded as the inevitable consequence of the assault - which is not the situation in the present case. Mr Solley submits that the suicide cannot reasonably be considered an incident within the purview of risk created by the defendant's conduct. No one could regard suicide as within the contemplation of an assailant in circumstances such as these, although if an assailant had specific knowledge of a particular risk of suicide in his victim and with that knowledge he attacked the victim that could give rise to a foreseeable risk.

The basis of these submissions of course is that foreseeability and the concept of novus actus interveniens are proper components of causation in the sphere of the criminal law. Mr Solley submits that the 'thin skull' principle remains unimpaired by this submission.

He further submits that what happened in the present case was effectively an aggravation by the victim of the initial assault by the defendant, and that aggravation breaks the chain of causation between the defendant's conduct and the death.

24 Page 6

He further, and alternatively, submits that the law should -- as he put it -- be re-expressed, in that gross self neglect, of the kind which he alleges the evidence here was capable of establishing, exonerates the defendant from the responsibility for the death. Gross self neglect to mitigate injury is, he says, not necessarily covered by the case of R v Blaue [1975] 3 All ER 446, [1975] 1 WLR 1411 to which we shall come shortly. If necessary to do so, Mr Solley would submit that the case of Blaue was wrongly decided. The 19th century decisions which culminated in the approach epitomised by Blaue are out of step with modern life, having regard to the vastly improved medical services which are now available and contemporary thinking.

He referred the court to a considerable number of authorities which he characterised as being of marginal relevance.

The first was R v Holland [1847] 2 M & ROB 351, where the victim of an assault which had severely cut one of his fingers declined to follow a surgeon's advice that his finger should be amputated or his life might be in great danger. Maule J told the jury it made no difference whether the wound was mortal or whether it became the cause of death because the deceased did not adopt the best mode of treatment; the question for the jury was whether the wound was the cause of death. Mr Solley submits that Holland, which was a decision at first instance, was probably wrong, but in any event it would be an affront to a modern jury to be invited to convict on circumstances such as those.

We interpose the comment on that submission, in passing, that a jury would have to consider intent as well as causation, and if the jury concluded that there was no necessary intent to support murder, but causation established manslaughter, the sentence for manslaughter could be tailored to the circumstances of the particular case.

Mr Solley referred to R v Jordan (1956) 40 Cr App Rep 152. That was, as it has subsequently been described in several decisions of this Court, "a wholly exceptional case" in which new medical evidence was heard by the Court of Criminal Appeal to the effect that that which the defendant had done had not caused the death but that the death had been caused by palpably wrong medical treatment.

Mr Solley referred to R v Smith [1959] 2 QB 35, [1959] 2 All ER 193. In particular, he relied on a passage in the judgment of Lord Parker CJ at page 42, which is in these terms:

"It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound."

That passage, submits Mr Solley, opens a window of possibility so far as this appellant is concerned, in that it can be said that the conduct of the defendant was no more than part of the history.

Mr Solley also referred to R v Mackie (1973) 57 Cr App Rep 453 which deals with foresight of consequence. It does so, it seems to this Court, not in relation to causation but in relation to the limits, for the purposes of the offence of manslaughter, of unlawful acts.

25 Page 7

Mr Solley then came to Blaue, where a girl who had been stabbed refused a blood transfusion on religious grounds and died. This Court upheld the conviction for manslaughter. The judgment of this Court was given by Lawton LJ. He cited a passage at page 1415 in the judgment which is in these terms:

"It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death."

That passage, Mr Solley submits, no longer represents contemporary morality or the approach which the courts ought to adopt.

He was also highly critical of a passage, which it is unnecessary to read, at page 1414 to 1415D-F in relation to the ability of the jury to fairly and properly unravel questions of unreasonableness in the context of causation.

Mr Solley referred also to the case of R v Roberts (1972) 56 Cr App Rep 95 and a passage in the judgment at page 102 which it is unnecessary to read.

He also referred to R v Cheshire [1991] 3 All ER 670, (1991) 93 Cr App Rep 251. At page 257 appears this passage:

"In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding that the accused's acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant."

Mr Solley submits that those words were applicable to this case, in the sense that it could be said that the defendant's conduct was not so potent in causing death and that the activities of the victim were conspicuously independent of the defendant's acts.

Mr Solley also referred us to the well-known treatise on Causation by Professor Hart and Professor Honore, in particular to certain passages in Ch 12 of that publication.

In the light of those authorities, Mr Solley submits that the judge wrongly withdrew from the jury the vital issue in relation to medical treatment which he dealt with at 10D in the following terms:

"In deciding whether they are operating and significant the fact that a person either fails or decides not to obtain medical treatment is irrelevant."

26 Page 8

That, Mr Solley submits, is a misdirection, and the nature of the directions given by the learned judge was such that the question of the interrelationship of the suicide with the defendant's conduct could not be resolved on the evidence before the jury. The judge ought not to have suggested that the suicide provided a break in causation only if the victim killed himself through shame or for a reason other than the defendant's attack on him. That, submits Mr Solley, was putting the matter much too high. The judge was effectively saying that suicide might be a novus actus only if the jury concluded that he would take his own life whether or not he had been cut.

On behalf of the prosecution, Mr Ellison submits that the learned judge's directions were correct and proper in the light of current law and the facts of this case. The appellant's argument, he submits, is directed to changing the law. What is necessary in the light of the authorities, submits Mr Ellison, is for the prosecution to prove that the deceased's conduct was a substantial cause of death and not simply something back in history, and, provided the jury are satisfied of this, the defendant's conduct is irrelevant in so far as it provides any other operative cause. Mr Ellison accepts that there may be a case in which the victim takes his own life whereby causation is broken, but in the present case the appellant's submission that this suicide (if suicide it was) broke the chain of causation is ill founded.

In our judgment the principal question raised by this appeal can be clearly answered by reference to four decisions of this Court and one textbook. In Smith, Lord Parker CJ said at page 42 that upon which Mr Solley relies. That passage, as it seems to us, accurately sets out the law as it is today. In Blaue, at page 1415G, Lawton LJ said - and we have already referred to this passage but it bears repeating:

"It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused the death. The answer is the stab wound."

In Blaue [1975] 3 All ER 446, [1975] 1 WLR 1411 the Court followed the case of Holland. Furthermore, the Court accepted as correct the view expressed by Hale in his Pleas of the Crown that he who had inflicted an injury that resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself.

In R v Malcherek [1981] 2 All ER 422, [1981] 1 WLR 690 the defendant inflicted serious brain damage. The victim required a life support machine which the doctors, several days later, turned off and death followed. The trial judge withdrew causation from the jury and an appeal on the ground that the doctors caused the death was dismissed. It was held that the injury inflicted by the defendant was an operating and substantial cause of death and it was immaterial whether or not the doctors also caused the death. Lord Lane CJ said at page 696H:

"There may be occasions, although they will be rare, where the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death."

In Cheshire (1991) 93 Cr App Rep 251, to which we have already referred, the defendant shot a man who died two months later in hospital from a rare complication due to medical negligence. This Court held that it is not for the jury to evaluate competing causes of death provided that they are satisfied that the accused's action contributed significantly to death: see the judgment of Beldam LJ page 258.

27 Page 9

At page 342 of the Seventh Edition of Criminal Law by Smith & Hogan, after a review of the relevant authorities in relation to death caused by medical treatment, the authors conclude as follows:

"...the following propositions at present represent the law.

(i) Medical evidence is admissible to show that the medical treatment of a wound was the cause of death and that the wound itself was not. This is so whether or not the wound is mortal.

(ii) If a wound was an operating and substantial cause of death, the defendant is guilty of homicide, however badly the wound was treated. (3) If a wound was not an operating and substantial case of death (ie, it was effectively healed) but the victim was killed by, eg, the inadvertent admission of deadly poison by a nurse, the wrongful administration of terremycin, or the ill-treatment of a tracheotomy, the defendant may or may not be guilty of homicide."

With that passage we agree.

At the top of page 343 the learned authors in discussing "The Effect of Neglect by the Injured Person" say this:

"The common law rule is that neglect or maltreatment by the injured person of himself does not exempt the defendant from liability for his ultimate death."

With that also we agree.

In the present case the evidence that the deceased deliberately sought to bring about his own death by reopening his wounds was, as it seems to us, somewhat tenuous. But, even assuming that there was evidence of suicide, through shame or some other reason unrelated to the defendant's conduct, for the jury to consider, this did not, in our judgment, render inaccurate or inappropriate the direction which the judge gave on causation. On the contrary, it seems to us that he catered for that possibility when, in the directions about the deceased's conduct he said at page 12E:

"If you came to the conclusion that he did or may have participated in his own demise and did so for a reason other than the defendant's attack upon him then of course the defendant would no longer be responsible." and at page 41B:

"...if you think that it may be that he did it through shame then the defendant would not have caused the death."

We see no sound basis for complaint in Mr Solley's criticism of the passage at page 10 where the judge refers to medical treatment. Nor do we see any basis for criticising the way in which the learned judge dealt with the question from the jury.

28 Page 10

The real question in this case, as in Smith, Blaue and Malcherek, was, as the judge correctly directed the jury, whether the injuries inflicted by the defendant were an operating and significant cause of the death. It is immaterial whether some other cause was also operating. It would not, in our judgment, be helpful to juries if the law required them, as Mr Solley's submissions suggest, to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but the former not breaking the chain of causation between the defendant's wrongful act and the victim's death.

Throughout this century in the civil law, which in this area is concerned with the apportionment of fault and causation for the purpose of compensation, judges and academic writers have grappled with causation and the roles which the concepts of novus actus interveniens and foreseeability do or should play in it. Conclusions as to the true analysis have varied from time to time at the highest level. It would, in our judgment, be a retrograde step if those niceties were to invade the criminal law, which, as Beldam LJ pointed out at in Cheshire at page 255, is not concerned with questions of apportionment.

The correct approach in the criminal law is that enunciated in Smith and the other authorities to which we have referred: were the injuries inflicted by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case.

In the present case the cause of the deceased's death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the defendant's conduct made an operative and significant contribution to the death.

Accordingly, for these reasons, there was in the judgment of this Court no misdirection and this appeal fails.

Appeal dismissed.

29 The Weekly Law Reports 16 August 1991

[1991]

[COURT OF APPEAL] A

*REGINA v. CHESHIRE

March 14, 19; Beldam L.J., Boreham and Auld JJ. April 22

Crime—Homicide—Causation—Victim of shooting needing surgery and intensive care—Development of respiratory problems—Failure to diagnose cause of problem—Death in hospital two months after shooting—Whether break in chain of causation—Direction to jury

On 9 December 1987 the appellant shot a man during the course of an argument in a shop. The victim was taken to hospital and underwent surgery. He developed respiratory problems and C a tracheotomy tube was inserted in his windpipe and remained in place for four weeks. On 2 February 1988 the victim began to show signs of improvement, but he complained of difficulty in breathing on 8 February and again on 14 February, when it was noted that he was making a noise described as "stridor." His condition deteriorated and he died shortly after midnight. At a post mortem examination it was found that the victim's windpipe n had become obstructed due to narrowing near the site of tracheotomy scar. The appellant was charged with murder. At his trial the pathologist gave evidence that the cause of death was cardio• respiratory arrest due to a condition produced as a result of the provision of an artificial airway in the treatment of gunshot wounds. At trial the appellant called evidence from a consultant surgeon that the death of the victim was caused by the failure to recognise the reason for his sudden and continued breathlessness £ and the severe respiratory obstruction indicated by stridor. The judge directed the jury that before they could find that the chain of causation between the shooting and the death had been broken they must be satisfied that the medical treatment or lack of it was reckless in the sense that those administering it were careless of the consequences. The appellant was convicted. On appeal against conviction:— Held, dismissing the appeal, that when a jury had to consider F whether negligent medical treatment of injuries inflicted by a defendant was a cause of death it was sufficient for the judge to direct them that it had to be proved that the defendant's acts caused the death, but that they need not be the sole or main cause provided that they contributed significantly to it; that even though negligence in the treatment of the victim was the immediate cause of his death, it should not be regarded as Q excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that the contribution made by his acts could be regarded as insignificant; but that it was not the function of the jury to evaluate competing causes or to choose which was dominant provided they were satisfied that the defendant's acts could fairly be said to have made a significant contribution to the victim's death; that although the judge had erred in inviting the H jury to consider a test of causation based on their assessment of the degree of fault in the medical treatment, in the context of the remainder of his direction on the issue and in the light of the evidence given no miscarriage of justice had actually occurred (post, pp. 851 H—852c, E-F). Reg. v. Smith [1959] 2 Q.B. 35, C.A. applied. Reg. v. Jordan (1956) 40 Cr.App.R. 152, C.A. and Reg. v. Malcherek [1981] 1 W.L.R. 690, C.A. considered.

30 The Weekly Law Reports 16 August 1991 845 1 W.L.R. Reg. v. Cheshire (C.A.) ^ The following cases were referred to in the judgment: Reg. v. Evans and Gardiner (No. 2) [1976] V.R. 523 Reg. v. Jordan (1956) 40 Cr.App.R. 152, C.A. Reg. v. Malcherek [1981] 1 W.L.R. 690; [1981] 2 All E.R. 422; (1981) 73 Cr.App.R. 173, C.A. Reg. v. Pagett (1983) 76 Cr.App.R. 279, C.A. Reg. v. Smith [1959] 2 Q.B. 35; [1959] 2 W.L.R. 623; [1959] 2 All E.R. 193 B The following additional case was cited in argument: Reg. v. Blaue [1975] 1 W.L.R. 1411; [1975] 3 All E.R. 446; (1975) 61 Cr.App.R. 271, C A.

APPEAL against conviction. C The appellant, David William Cheshire, on 31 January 1989 in the Central Criminal Court, before Judge Richard Lowry Q.C. and a jury, was convicted of murder and sentenced to life imprisonment. He appealed on the ground that the judge wrongly directed the jury on the circumstan• ces in which the chain of causation could be regarded as broken. The facts are stated in the judgment. D James Stewart Q.C. and Jonathan Goldberg Q.C. (assigned by the Registrar of Criminal Appeals) for the appellant. David Howard Evans Q.C. and Jocelyn Sparks for the Crown.

Cur. adv. vult. E 22 April. BELDAM L.J. read the following judgment of the court. The appellant, David William Cheshire, was convicted of the murder of Trevor Jeffrey at the Central Criminal Court on 31 January 1989. He was sentenced to life imprisonment. He now appeals against conviction with the leave of the single judge. On 14 March 1991 we heard an application under section 23 of the Criminal Appeal Act 1968 to receive fresh F evidence. For the reasons then given, we rejected that application and then heard argument on the appeal. We reserved our judgment. At about midnight on 9/10 December 1987 the appellant was in the "Ozone" fish and chip shop in Greenwich when he became involved in an argument with Trevor Jeffrey, the deceased. The appellant produced a handgun and fired it at the ceiling. The deceased grappled with him but P the appellant fired two more shots. They were fired at the deceased at close range. One bullet entered the top of the thigh and shattered the thigh bone. The other entered the deceased's stomach. The appellant fled from the shop, and an ambulance and the police were summoned. The deceased was taken to the Accident and Emergency Department of the Greenwich District Hospital. There, in the early hours of the morning, he underwent surgery. Both bullets had caused extensive damage. The thigh H injury was cleaned, the bone joined and his leg placed in traction. There was substantial damage in the abdominal cavity which was contaminated. A fairly extensive bowel resection and wound toilet was carried out and he was given blood transfusions. In due course he was transferred to the intensive care unit. He there developed respiratory problems and his breathing had to be maintained by a ventilator using a tube placed in the windpipe. A week later this tube was replaced by a tracheotomy tube which remained in place for the next four weeks. His condition did not

31 The Weekly Law Reports 16 August 1991 846 Reg. v. Cheshire (C.A.) [1991] improve and after a marked deterioration on Christmas Day a further A operation to explore his abdomen was carried out. From time to time he suffered from chest infections, from vomiting and from discharges from the abdominal wound and it was not until 2 February 1988 that he began to show improvement. During his time in intensive care the deceased's lungs had become congested and filled with fluid and he suffered considerable difficulty with breathing. On 8 February he again complained of difficulty in breathing and it was at first thought ° that this was a recurrence of the problem with his lungs. An X-ray was taken but it showed no recurrence of lung trouble. Whilst in intensive care the deceased had on several occasions shown signs of anxiety and a tentative diagnosis was made that the intermittent problem with his breathing of which he complained after 8 February was due to attacks of anxiety. He was seen by several doctors of differing experience during the Q ensuing week. He was probably seen by Mr. Harrison, the consultant general surgeon at the Greenwich District Hospital, on one occasion. He was also seen by the surgical registrar, Mr. Saunders, and the orthopaedic registrar. Later, on the evening of 14 February, he complained of further difficulty with breathing and was attended by a house surgeon, Dr. Clare Jones. Dr. Jones had qualified in the summer of 1987 and had been a medical houseman for six months before becoming house surgeon on 1 D February. She was worried about the deceased's condition and sat with him for three-quarters of an hour recording in the notes that he was making a noise through his respiratory passages which she described as "stridor." The deceased's condition deteriorated and the medical registrar was called. Urgent resuscitation, including cardiac massage, was given but the deceased died shortly after midnight. p At post mortem it was found that the deceased's windpipe had become obstructed due to narrowing near the site of the tracheotomy scar. Such a condition is a rare but not unknown complication of intubation of the windpipe. The deceased's windpipe had become so narrowed that even a small amount of mucus could block it and cause asphyxiation. The experienced pathologist who conducted the post mortem gave evidence that the immediate cause of death was cardio-respiratory arrest F "due to a condition which was produced as a result of treatment to provide an artificial airway in the treatment of gunshot wounds of the abdomen and leg," and he said: "In other words, I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg." For the appellant it was conceded that the sequence of events which ~ had led to the deceased's death was that described by the pathologist but a consultant surgeon, Mr. Eadie, gave it as his opinion that by 8 February 1988 the wounds of the thigh and the abdomen no longer threatened the life of the deceased and his chances of survival were good. In his view the cause of his death was the failure to recognise the reason for the sudden onset and continued breathlessness after 8 February and the severe respiratory obstruction evidenced by stridor on 14 February. H The doctors who examined and treated the deceased in the week before his death ought to have diagnosed the serious clinical condition from which he was suffering. Mr. Eadie was particularly critical of the failure to appreciate the serious implications of stridor on the evening of 14 February. The deceased would not have died if his condition had been diagnosed and properly treated. The doctors had been negligent and this was the cause of his death. One question for the jury at trial therefore

32 The Weekly Law Reports 16 August 1991 847 1 YV.L.R. Reg. v. Cheshire (C.A.) A was whether the Crown had proved, so that they were sure, that the shots fired by the appellant had caused the deceased's death. In this appeal it has been argued that the judge misdirected the jury on this issue. The appellant complains of a passage in which the judge said: "My direction to you is this, and I have to take the responsibility and r> you have to observe my direction: if the treatment could have been better, if it is no more than that, then the bullets caused the death, even if the treatment was incompetent, negligent. The bullets caused the death. For you to find that the chain was broken, the medical treatment or lack of medical treatment must be reckless. Mr. Boal when opening used the words 'gross negligence.' Mr. Eadie observed to you that gross negligence he regarded as the same as recklessness C and he is right, and I am using the word 'recklessness' which is a strong word. Mere carelessness or mere negligence are not reck• lessness. Reckless conduct is where somebody could not care less. He acts or fails to act careless of the consequences, careless of the comfort and safety of another person. It is that which you are looking for when you examine the medical evidence. The question is: do you n see it, because nothing less alters the situation. In closing speeches Mr. Boal spoke of a high degree of negligence. Mr. Stewart when cross-examining the witnesses spotted and highlighted acts which he said were not just inexperience, but negligence, and you may agree with him. But the direction I give you is what I have spoken. You are looking for recklessness." p In this paragraph it is said that the judge virtually withdrew from the jury consideration of the doctor's failure to diagnose the deceased's clinical condition as the cause of his death because no juror would be likely to accept that a doctor treating a patient was reckless in the sense that he could not care less whether the patient lived or died. With hindsight it is easy to see how the judge was drawn into including this passage in his direction. Counsel for the Crown had opened the case F on the basis that nothing less than gross negligence on the part of the doctors treating the deceased would suffice to break the chain of causation between the shooting and his death. Mr. Eadie in evidence had pointed to a number of respects in which he contended that the treatment afforded to the deceased had fallen below the standard to be expected of competent medical practitioners. But when asked whether in his opinion the totality ,-, of failures amounted to "gross negligence" he said that it was negligent but not grossly negligent and he was asked: "Q. When you say not gross, is that the word, the word 'gross,' that you are using in what sense? A. I apply it as being something which is a reckless act. This was not a reckless act, this was an act of negligence which should not have taken place. It was not reckless." H That is how the word "reckless" crept into the case and why it was used by the judge in the context quoted. In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the defendant's criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge. We think the matter cannot be better put than it was by Robert Goff L.J. in Reg. v. Pagett (1983) 76 Cr.App.R. 279, 288:

33 The Weekly Law Reports 16 August 1991 848 Reg. v. Cheshire (C.A.) [1991] "In cases of homicide, it is rarely necessary to give the jury any A direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute. What is in dispute is more likely to be some other matter: for example, the identity of the person who committed the act which indisputably caused the victim's death; or whether the accused had the necessary intent; or whether the accused acted in ° self-defence, or was provoked. Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a Q direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third D person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such interven• tion, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no g simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use F the Latin term." Robert Goff L.J. went on to express his indebtedness to the work of Professors Hart and Honore in Causation in the Law, 2nd ed. (1985). We too are indebted to section IV of Chapter 12 of that work. Under the heading "Doctor's or Victim's Negligence" the authors deal with cases in which an assault or wounding is followed by improper medical treatment G or by refusal of treatment by the victim or failure on his part to take proper care of the wound or injury. The authors trace from Hale's Pleas of the Crown (1736) and Stephen's Digest of the Criminal Law, 9th ed. (1950) the emergence of a standard set by Stephen of common knowledge or skill which they suggest appears to require proof of something more than ordinary negligence in order that one who inflicts a wound may be pj relieved of liability for homicide. And they refer to most American authorities as requiring at least gross negligence to negative causal connection. English decisions, however, have not echoed these words. In conclusion the authors state, at p. 362: "Our survey of the place of doctor's and victim's negligence in the law of homicide, where differences of policy between civil and criminal law might be expected to make themselves felt, yields a

34 The Weekly Law Reports 16 August 1991 849 1 W.L.R. Reg. v. Cheshire (C.A.) A meagre harvest, (i) On Stephen's view, which has some modern support, there is no difference between civil and criminal law as regards the effect of medical negligence: in each case gross negligence ('want of common knowledge or skill') is required to negative responsibility for death."

Whatever may be the differences of policy between the approach of B the civil and the criminal law to the question of causation, there are we think reasons for a critical approach when importing the language of the one to the other. Since the apportionment of responsibility for damage has become commonplace in the civil law, judges have sought to distinguish the blameworthiness of conduct from its causative effect. Epithets suggestive ^ of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty. In the criminal law the jury considering the factual question, did the defendant's act cause the deceased's death, will we think derive little assistance from figures of speech more appropriate for conveying degrees of fault or blame in questions of apportionment. Unless D authority suggests otherwise, we think such figures of speech are to be avoided in giving guidance to a jury on the question of causation. Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause. As F Professors Hart and Honore comment, treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary. Acts or omissions of a doctor treating the victim for injuries he has received at the hands of a defendant may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the defendant but it is most unlikely that F they will be. We have not been referred to any English authority in which the terms of the direction which should be given to a jury in such a case have been considered. We were referred to Reg. v. Jordan (1956) 40 Cr.App.R. 152 in which the appellant who had been convicted of murder sought leave to call further evidence about the cause of the victim's death. The application was granted and evidence was received by the court that the stab wound from which the victim died eight days later was not the cause of the victim's death. The deceased had died from the effects of sensitivity to Terramycin which had been given to him after his intolerance to it was established and in abnormal quantity. The court considered that the introduction into the system of the victim of a substance shown to be poisonous to him and in quantities which were so great as to result in H pulmonary oedema leading to pneumonia were factors which ought to have been before the jury and which in all probability would have affected their decision. Jordan's case was described in the later case of Reg. v. Smith [1959] 2 Q.B. 35 as a very particular case dependent upon its exact facts. The ' appellant in Smith had been convicted at court-martial of the murder of another soldier by stabbing him. The victim had been dropped twice while being taken to the medical reception station and was subsequently

35 The Weekly Law Reports 16 August 1991 850 Reg. v. Cheshire (C.A.) [1991] given treatment which was said to be incorrect and harmful. Lord Parker A C.J., giving the judgment of the court-martial appeal court, rejected a contention that his death did not result from the stab wound. He said, at pp. 42-43: "It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other g cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound." C Both these cases were considered by this court in Reg. v. Malcherek [1981] 1 W.L.R. 690, in which it had been argued that the act of a doctor in disconnecting a life support machine had intervened to cause the death of the victim to the exclusion of injuries inflicted by the appellants. In rejecting this submission Lord Lane C.J., after considering Reg. v. Jordan, 40 Cr.App.R. 152 and Reg. v. Smith [1959] 2 Q.B. 35, said [1981] 1 W.L.R. 690, 696: D "In the view of this court, if a choice has to be made between the decision in Reg. v. Jordan, 40 Cr.App.R. 152 and that in Reg. v. Smith [1959] 2 Q.B. 35, which we do not believe it does (Reg. v. Jordan being a very exceptional case), then the decision in Reg. v. Smith is to be preferred." E Later in the same judgment Lord Lane C.J., said, at pp. 696-697: "There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death." In those two cases it was not suggested that the actions of the doctors ^ in disconnecting the life support machines were other than competent and careful. The court did not have to consider the effect of medical treatment which fell short of the standard of care to be expected of competent medical practitioners. A case in which the facts bear a close similarity to the case with which we are concerned is Reg. v. Evans and Gardiner (No. 2) [1976] V.R. 523. In that case the deceased was stabbed in the stomach by the two applicants H in April 1974. After operation the victim resumed an apparently healthy life but nearly a year later, after suffering abdominal pain and vomiting and undergoing further medical treatment, he died. The cause of death was a stricture of the small bowel, a not uncommon sequel to the operation carried out to deal with the stab wound inflicted by the applicants. It was contended that the doctors treating the victim for the later symptoms ought to have diagnosed the presence of the stricture,

36 The Weekly Law Reports 16 August 1991 851 1 W.L.R. Reg. v. Cheshire (C.A.) A that they had been negligent not to do so and that timely operative treatment would have saved the victim's life. The Supreme Court of Victoria held that the test to be applied in determining whether a felonious act has caused a death which follows, in spite of an intervening act, is whether the felonious act is still an operating and substantial cause of the death. The summing up to the jury had been based on the passage already B quoted from Lord Parker C.J.'s judgment in Reg. v. Smith [1959] 2 Q.B. 35 and the Supreme Court endorsed a direction in those terms. It commented upon the limitations of the decision of Reg. v. Jordan, 40 Cr.App.R. 152 and made observations on the difference between the failure to diagnose the consequence of the original injury and cases in which medical treatment has been given which has a positive adverse C effect on the victim. It concluded [1976] V.R. 523, 528: "But in the long run the difference between a positive act of commission and an omission to do some particular act is for these purposes ultimately a question of degree. As an event intervening between an act alleged to be felonious and to have resulted in death, and the actual death, a positive act of commission or an act of „ omission will serve to break the chain of causation only if it can be shown that the act or omission accelerated the death, so that it can be said to have caused the death and thus to have prevented the felonious act which would have caused death from actually doing so." Later in the judgment the court said, at p. 534: E "In these circumstances we agree with the view of the learned trial judge expressed in his report to this court that there was a case to go to the jury. The failure of the medical practitioners to diagnose correctly the victim's condition, however inept or unskilful, was not the cause of death. It was the blockage of the bowel which caused death and the real question for the jury was whether that blockage was due to the stabbing. There was plenty of medical evidence to support such a finding, if the jury chose to accept it." It seems to us that these two passages demonstrate the difficulties in formulating and explaining a general concept of causation but what we think does emerge from this and the other cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other P medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim's death to the exclusion of the defendant's acts. Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient H explanation of the basis of such relationship has proved notoriously elusive. In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the defendant was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the defendant caused the death of the deceased adding that the defendant's acts need not be the sole cause or even the main cause of death it being sufficient that his

37 The Weekly Law Reports 16 August 1991 852 Reg. v. Cheshire (C.A.) [1991] acts contributed significantly to that result. Even though negligence in the A treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the defendant's " acts can fairly be said to have made a significant contribution to the victim's death. We think the word "significant" conveys the necessary substance of a contribution made to the death which is more than negligible. In the present case the passage in the summing up complained of has to be set in the context of the remainder of the direction given by the Q judge on the issue of causation. He directed the jury that they had to decide whether the two bullets fired into the deceased on 10 December caused his death on 15 February following. Or, he said, put in another way, did the injuries caused cease to operate as a cause of death because something else intervened? He told them that the prosecution did not have to prove that the bullets were the only cause of death but they had to prove that they were one operative and substantial cause of death. He D was thus following the words used in Reg. v. Smith [1959] 2 Q.B. 35. The judge then gave several examples for the jury to consider before reverting to a paraphrase of the alternative formulation used by Lord Parker C.J. in Reg. v. Smith. Finally, he reminded the jury of the evidence which they had heard on this issue. We would remark that on several occasions during this evidence the jury had passed notes to the £ judge asking for clarification of expressions used by the medical witnesses which showed that they were following closely the factual issues they had to consider. If the passage to which exception has been taken had not been included, no possible criticism could have been levelled at the summing up. Although for reasons we have stated we think that the judge erred when he invited the jury to consider the degree of fault in the medical treatment rather than its consequences, we consider that no F miscarriage of justice has actually occurred. Even if more experienced doctors than those who attended the deceased would have recognised the rare complication in time to have prevented the deceased's death, that complication was a direct consequence of the appellant's acts which remained a significant cause of his death. We cannot conceive that, on the evidence given, any jury would have found otherwise. ^ Accordingly, we dismiss the appeal.

Appeal dismissed.

Solicitors: Crown Prosecution Service, Central Courts branch.

[Reported by EIRA CARYL-THOMAS, Barrister] H

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