Causation
7.At trial, the prosecution proceeded on the basis that it was for the Crown to prove that timely medical intervention would have saved Louella’s life. In the course of his summing up the judge said: “To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a substantial contribution to the cause of death. The prosecution’s case is that by failing to obtain medical help in time, his breach of duty was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived. The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was needed, what was the likelihood of survival. Are you sure that the failure to obtain medical help at that time was a substantial cause of her death?” 8.Mr Kamlish QC has no quibble with this part of the summing up but submits that what followed diluted what was a simple proposition: in a case concerning a negligent lack of medical attention (just as in a case involving negligent medical attention) to establish that the breach of duty (lack of treatment of wrong treatment) was a substantial cause of death the prosecution must prove to the criminal standard that the person concerned would have lived. 9.For the purposes of the appeal, Miss Darlow QC (who did not appear at trial) contends for a different test. She submits that the correct test is “whether [the jury was] sure that the defendant’s negligence deprived the victim of a significant or substantial chance of survival that was otherwise available to the victim at the time of the defendant’s negligence.” 10.In support of that submission Miss Darlow relies on an extract from the summing up of Nicol J quoted by Sir Brian Leveson P in Sellu:“You may decide that, even if an earlier operation would not have been bound to succeed, the effect of Mr Sellu’s negligence was to deprive Mr Hughes of a significant chance of survival and in that sense was a significant contributory cause to Mr Hughes’ death. Once again, how big a contribution has to be to qualify as significant is left to your good sense. So, if you decide that Mr Sellu was grossly negligent in his care of Mr Hughes, you must ask yourselves whether the failure to treat him in a proper way significantly contributed to Mr Hughes’ death.”11.Thus, Miss Darlow submits, Sellu had clarified that in cases involving gross negligence by omission, the requirement that the breach of duty caused or made a significant contribution to death is met if the effect of the breach was to deprive the deceased of a significant (as opposed to certain) chance of survival. In contrast, requiring proof of certainty of survival was unsupported by general principles of causation and would, if implemented, render many cases where death had ensued after gross negligence, medical or otherwise, impossible to prosecute because of the difficulty of proving that there was no possibility of the victim dying if treated. In short, she submits there is no need for the prosecution to establish to the criminal standard that the deceased would have lived. 12.Mr Kamlish submits that the prosecution argument misunderstands Sellu in which, in any event, the President made the position clear in paragraph 127: “What was critical was that the jury reached conclusions as to such findings as they were sure constituted gross negligence and, in the light of those findings, went on to consider the question of causation, understanding that causation would not be established if the gross negligence was after the time they could be sure that Mr Hughes would have survived.” 13.He submits that the sweep of earlier cases supports the submission he makes on behalf of the appellant. They were reflected in the summing up of Langley J in Misra, which was approved by this court. It was, like Sellu, a medical case. The judge directed the jury in these terms: “The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips’ death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point of the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a cause of Sean Phillips’ death and, whatever you may think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean’s condition became irreversible, I repeat that you must give the defendants the benefits of those doubts”. 14.The test for causation in homicide cases has long been that it is sufficient for the prosecution to prove that the act (or omission) of the accused was a significant contributory cause of death, rather than the sole or principal cause of death. That reflects the obvious reality that there can be concurrent causes of death. In most cases the issue will not arise. Most homicides resulting from an assault provide no difficulty because the injury is the undoubted cause of death. That will be true also in gross negligence manslaughter cases where the deceased suffers a traumatic death. Nonetheless, even in cases of assault causing injury there may be examples of concurrent causes of death. They include an assault which provokes a fatal heart attack or an assault from which the victim dies in circumstances where medical treatment should have saved him but did not because it was negligently administered. 15.In cases of gross negligence manslaughter which arise in the context of medical treatment there will frequently be an underlying condition which causes death. The issue will be whether the breach of duty was also a substantial cause of the death. The same will apply when the allegation at the heart of the prosecution of manslaughter is that the health professional failed to provide treatment that should have been provided or a person who owed the deceased a duty of care failed to secure medical treatment. 16.The approach to causation in such cases was settled by Lord Coleridge CJ in R v Morby (1882) 8 QBD 571. The prosecution concerned a father who, in conformity with his religious views, did not employ a doctor to treat his son. The boy later died of smallpox. The medical evidence at trial had been that proper medical attention might have saved or prolonged the child's life, and would have increased his chance of recovery, but might have been of no avail. Following a conviction for manslaughter, the case was referred to the Queen's Bench Division, as a Crown Case Reserved. This question was put to Doctor Sharpe. “In your opinion do you think the life of the deceased might have been probably prolonged if medical skill had been called in?” to which he answered, “Probably, but I would rather put it in this way, that the chances of the boy's life would have been increased by having medical advice.” He was later asked, “In your judgment if medical advice and assistance had been called in at any stage of this disease might the death have been averted altogether?” The doctor answered “I can only answer that by saying that it might have been. Ours is not a positive science. It might have been averted if medical aid had been called in at any earlier stage. I am unable to say whether it probably would. I might say probably, as to whether life might have been prolonged. I cannot say that death would probably have been averted. I think it probable that life might have been prolonged. I can only say probably might, because I did not see the case while living. I am unable to say that life would probably have been prolonged, because I did not see the case during life, had I done so, I might have been able to answer the question.” 17.The trial judge left the issue to the jury asking them, would the life of the child have been prolonged? The defendant was convicted. 18.Quashing the conviction Lord Coleridge explained in his two-paragraph judgment: "It is not enough to shew neglect of reasonable means for preserving or prolonging the child's life, but to convict of manslaughter it must be shewn that the neglect had the effect of shortening life. The medical witness called for the prosecution gave his evidence clearly and well, and under a high sense of his duty and responsibility, and what he stated was, that in his opinion the chances of life would have been increased by having medical advice, that life might possibly have been prolonged thereby, or, indeed, might probably have been, but that he could not say that it would, or indeed that it would probably, have been prolonged thereby. In order to sustain the conviction affirmative proof is required. This the skilled witness called, and upon whose evidence the matter rests, cannot, from the nature of the case, give and, indeed, properly declines to give. The direction of the learned judge, though right in point of law, is not applicable to the facts proved. The conviction cannot be sustained." 19.Grove J, in an even shorter concurring judgment pointed to the impossibility of the jury answering the question which the doctor could not. Stephen J added “to convict of manslaughter you must shew that he caused death or accelerated it.” Mathew and Cave JJ agreed. 20.These judgments are inconsistent with the submission advanced by the Crown in this appeal. When deciding that the prosecution must “shew” that the defendant’s breach of duty caused death or that “affirmative proof is required” the context was a criminal prosecution where the criminal standard of proof thus applied. The court expressly rejected that it was sufficient to show that there was a significant chance that life would have been preserved. That, after all, was precisely the evidence of the doctor. Nor should it be thought that the references to probability can be taken as suggesting that the civil standard of proof is sufficient. Those references followed from the evidence given by the doctor. 21.The principle established by Morby has not been abrogated in the intervening 140 years. In Misra at paragraph 70 Judge LJ (as he then was) expressly approved the passage from the summing up of Langley J which we have quoted and Sir Brian Leveson P used similar language in Sellu at paragraph 27. 22.The passage from the summing up in Sellu, upon which Miss Darlow relies, needs to be read in the context of the way in which the prosecution put its case against the doctor. There was a series of alleged failings, each of which needed to be judged by reference to the proper yardstick for gross negligence. The steps which it was suggested Mr Sellu should have taken included arranging for the administration of antibiotics, ensuring that tests were undertaken, or obtaining the services of an anaesthetist and embarking on an earlier operation. The prosecution adduced evidence which suggested a diminishing chance of survival as time went by. There was no ground of appeal which attacked the overall way in which the judge had summed up causation. The argument was that because there was a series of alleged failures, each of which was grossly negligent, the jury needed an express direction linking each alleged failure with causation. The essence of the grounds is found in paragraph 121 of the judgment of Sir Brian Leveson P: “On appeal, Mr Ellison argued that some jurors might have been sure of gross negligence only at such a late time in the chronology that the conviction might have been returned without a consideration of the fact that, by then, the likelihood was that Mr Hughes would still have died. Thus, it was left open to them to convict in relation to a failure to act at a stage in the chronology where they were no longer sure that Mr Hughes would have survived in any event i.e. when causation could no longer be proved. Furthermore, he contends that the judge erred in not directing the jury in accordance with Brown (1984 79 Cr App R 115) that they must all agree as to any particular negligent act or omission before they could move on to decide whether there was gross negligence causative of death.” 23.Sellu is not authority for the proposition advanced by the Crown that in cases of gross negligence manslaughter the limit of the obligation on the prosecution is to prove that the failing in question deprived the victim of a significant or substantial chance of survival that was otherwise available at the time of the defendant’s negligence. The prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributory cause of death. That means that the prosecution must prove that the deceased would have lived in the sense that life would have been significantly prolonged. It is well established that being “sure” is not the same as scientific certainty. See, for example, the discussion in R v. Gian, Mohd-Yusoff [2009] EWCA Crim 2553 at paragraphs 22 to 24. That case concerned a suggestion that there were theoretical or hypothetical possible causes of death which could not be excluded as a matter of theory but were entirely unrealistic. The jury must make judgements on “realistic not fanciful possibilities”. To be sure that the gross negligence caused the death the prosecution must exclude realistic or plausible possibilities that the deceased would anyway have died.