Submission of no case to answer
65.At the conclusion of the prosecution case, the appellant submitted that there was no case to answer in respect of all four core issues: duty of care, breach of duty, causation, and gross negligence. On causation, the appellant submitted that in the light of Professor Deakin’s evidence, in particular his first report from which we have quoted, any breach of duty by the appellant could only safely be regarded as having been a cause of Louella’s death before 21.10, and that given that the jury could not be sure that there was an obvious risk of death until 21.10, there was no point at which the existence of duty was coterminous with causation. More generally, it was submitted that the various descriptions given by the Professor were such that the jury could not be sure that any alleged gross negligence was a cause of death. Moreover, that changes in the Professor’s opinion meant that his evidence could not assist the jury. 66.In reply, the prosecution pointed to Professor Deakin’s evidence that Louella would have stood a very good chance of surviving if she had received medical care, and his comment that as long as she was actually breathing when found, the chances of her surviving would be very high. The camera footage at 20.18 showed that Louella was making incoherent noises, was not aware of her surroundings and was (in Professor Deakin’s opinion) seriously unwell and in need of urgent medical care. She appeared to him to be dead at 23.35. The prosecution argued that the appellant’s negligence over five to six hours provided an explanation for Louella’s death, the root cause of which was the drug consumption and then the resulting effects. It was submitted that causation was properly a matter for the jury who should have the final decision on issues in relation to which expert evidence had been given. The respondent relied on Misra which was said to be similar (albeit in the context of medical negligence) in that the experts could not (as Professor Deakin could not in the appellant’s case) definitively exclude the possibility that the patient would not have died even with appropriate medical care. This court concluded in Misra that there was a case to answer. 67.The judge rejected the submission of no case to answer. He acknowledged that Professor Deakin could not say beyond reasonable doubt that Louella would not have died in any event, but he did not think that her death was inevitable. She had a very good chance of surviving if she received medical help before she became unresponsive. The judge noted that the Professor had thought that it was very likely that Louella would have survived if she had received medical treatment before 21.10 and likely thereafter. He added: “The co-existence of a likelihood that the deceased could be saved with medical assistance and a breach of duty will be for the jury to decide. There is sufficient evidence of both a breach of duty before 21.10 and after that time; there is sufficient evidence that it was likely that the deceased could be saved both before and after that time. 68.With respect to the submission that causation could not be proved because Professor Deakin, adopting the criminal standard of proof, was unable to rule out that death would have supervened anyway, the judge accepted the prosecution submission that it was contrary to the decision in Misra. He concluded that the submission suggesting the Professor’s evidence was unreliable given the changes in his opinion was a matter for the jury.