Case No. 201901214C4-&-201901215C4

appeals against conviction by leave of the single judge on the ground that the prosecution failed to adduce evidence from which the jury could be sure that the appellant’s negligence was a cause of Louella’s death. He renews two grounds on which leave was refused, first, that the judge misdirected the jury on causation and secondly that no duty of care arose on the facts of the case. Gross Negligence Manslaughter 4.The ingredients of the offence were set out in R v. Adomako [1995] 1 AC 171. At 187 Lord Mackay of Clashfern LC explained: “In my opinion, the law as stated in [Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.” 5.Gross negligence manslaughter has since been considered in this court on many occasions, particularly within the last four years. The context has frequently been the alleged gross negligence of medical professionals. The appeals include R v. Rudling [2016] EWCA Crim 741, R v. Sellu [2016] EWCA Crim 1716, [2017] 4 WLR 64, R v. Bawa-Garba [2016] EWCA Crim 1841, R v. Rose [2017] EWCA Crim 1168, [2018] QB 328, R v. Zaman [2017] EWCA Crim 1783, R v. Winterton [2018] EWCA Crim 2435, R v. Pearson [2019] EWCA Crim 455, R v. Kuddus [2019] EWCA Crim 837 and R v. Broadhurst [2019] EWCA Crim 2026. The result of this consideration is that six elements have been identified that the prosecution must prove before a defendant can be convicted of gross negligence manslaughter: i)The defendant owed an existing duty of care to the victim. ii)The defendant negligently breached that duty of care. iii)At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation. iv)It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death. v)The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim. vi)In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. The elements found in (iii) and (iv) will not need separate consideration or articulation in many cases. 6.The formulation of a “serious and obvious risk of death” can be found in the judgment of this court in R v. Gurphal Singh 1999 Crim LR 582 approving the direction of the trial judge. It has been affirmed on many occasions (e.g. in Rudling at paragraph 18; Rose at paragraph 77(2)). In R v. Evans [2009] 1 WLR at paragraph 31, Lord Judge CJ used the term “life threatening” in this context but it does not suggest a different test. In R v. Misra [2004] EWCA Crim 2375 (a medical case) Judge LJ (as he then was) had considered the nature of the risk needed to engage the duty and, in particular, whether the risk should be of death rather than serious injury. At paragraphs 49 to 52 he cited the test in Gurpal Singh, the practice of the Director of Public Prosecutions to apply that test and the concurring views of the editor of Blackstone’s Criminal Practice, all without adverse comment, before concluding that the risk must be to life. 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. The Facts 24. The prosecution case was that the appellant had “bumped up” the 2C-P that he supplied to Louella (whether by increasing the dose, or by mixing it with another drug); that she had consumed the drug(s) in the afternoon of Sunday 10 September 2017; that they had then spent some hours together in a dense wood just outside the festival site. Louella’s condition deteriorated and ultimately, she died. The prosecution case was that despite being urged to do so in telephone calls and text messages from members of Louella’s family, the appellant had failed to take reasonable steps to save her life. Louella was formally pronounced dead at the scene at 01.10 on Monday 11 September 2017 (her 25th birthday) although there was evidence that she had died over an hour before. Traces of 2C-P, MDMA (Ecstasy) and ketamine were later found in her body. Traces of 2C-P, MDMA, ketamine, diazepam and the breakdown product of cocaine were later found in the appellant’s samples, and 44mgs of 2C-P were found inside the back of his iPhone. In interview, the appellant denied that he had ever supplied drugs to Louella or to anyone else. He claimed that he had not taken any drugs at the festival. Nevertheless, prior to the trial, he pleaded guilty to two offences of supplying 2C-P at the Glastonbury Festival in Somerset in June 2017 to Louella and a friend. The outline chronology 25.Louella arrived at the festival on Saturday 9 September 2017. In two texts at 14.04 that day she informed the appellant that security had taken her drugs, and that she just wanted “that big one”. The appellant replied that he would bring some, and that “Sam T will have them”. The appellant arrived in the early hours of Sunday 10 September, accompanied by his friend Ezra Campbell and another man. 26.At around 16.00 on Sunday 10 September, the appellant, Louella, Ezra Campbell and the other man were in the vicinity of a toastie van on the edge of the festival site. Ezra Campbell observed that the appellant and Louella were giggling and thought that they may have taken some drugs. Thereafter the appellant and Louella indicated that they were going to “the forest”, which Ezra Campbell wrongly thought to be the “Ambient Forest” within the festival site, which later led to confusion when people were trying to find them. 27.In fact, the appellant and Louella made their way to a wood just outside the site. They were last caught on camera at 16.29 as they walked towards it. Inside the wood there were thick brambles, dense undergrowth, and logs. The appellant had his iPhone, but mobile telephone reception was poor, which later caused problems with making and receiving calls and the sequence in which text messages were received and sent. The appellant and Louella ended up about 30 metres into the wood, and thus some 85 metres from a telegraph pole at the edge of the festival site, and some 400 metres (as the crow flies) from the festival medical tent. 28.Thereafter, using his iPhone, the appellant took a number of live photographs of Louella and also videoed her. This was consensual and designed to record her trip. At 17.16 and 17.17 live photos showed Louella sitting on a branch. 29.At 17.53 the appellant began filming the first video, which lasted for just over 50 minutes. The video was later viewed by Dr Morley, who observed that, at the outset, Louella was animated and shouting at the appellant and the world in general. She was aware of the appellant, but not necessarily of her surroundings. She repeated herself a lot. By around 18.03 Louella became more aggressive and began to slap herself. By around 18.13 she developed a screeching quality to her voice. She did not seem to react when the appellant said her name. Finally, by around 18.33, Louella sounded more confused and was slapping her body and legs more frequently. 30.At 18.43 (very shortly after the end of the first video) the appellant began filming another video, which lasted for some two-and-a-half minutes. Dr Morley observed that the appellant and Louella were still in the same positions, and that Louella was still agitated – but now more confused. She was conscious, but not necessarily aware of her surroundings, and was slapping herself almost continually. 31.At 18.47 the appellant tried to ring Louella’s mother. At 18.48 Louella’s mother rang back and there was then a conversation lasting eleven minutes. Louella’s mother described how she could hear Louella in the background, and that she sounded like a wild animal, saying “I don’t trust you; I hate you” to the appellant, who was trying to calm her down. Louella’s mother said that she repeatedly told the appellant to get help for Louella, and to go to the medical tent. The appellant said: “Don’t worry I will look after her”. 32.Immediately after the call Louella’s mother contacted the organisers at festival explaining that she believed her daughter was having a bad trip. That resulted in a search of the “Ambient Forest” and a consequent failure to find Louella and the appellant. In a statement read to the jury a member of staff from the festival said: 33.In the meantime, Louella’s mother and father had set off by car to the festival site at Lulworth. 34.At 19.00 Louella’s brother texted the appellant imploring him to take Louella to the medical tent. He added that she needed to be near a professional. At 19.04 the appellant took a series of live photographs of Louella, who was sitting in the woods shouting incoherently. At 19.07 Louella’s brother telephoned the appellant, who told him that he had supplied Louella with 2C-P and that he had “bumped it up a bit”. At 19.13 Ezra Campbell rang the appellant, who told him to “get the medics” to the forest. At 19.28 Louella’s mother (on route to the festival) rang the appellant. At 19.30 Louella’s brother (who had been in contact with Ezra Campbell) texted the appellant asking him to send his location to Ezra Campbell, who could help. Sunset was at 19.33. 35.At 19.38 Louella’s father texted the appellant, asking him to look after Louella. At 19.54 Louella’s brother texted the appellant asking if he had got her to the medical tent. At 20.09 Louella’s brother texted again, asking how Louella was doing and for the appellant to call him. The appellant tried unsuccessfully to ring Louella’s mother. At 20.11 the appellant tried to call Ezra Campbell and from 20.14 to 20.16 Ezra Campbell tried to call the appellant, all without success. 36.At 20.18 the appellant made a 15 second video of Louella in the dark. There had been a significant deterioration in her condition. She was lying on her back, her head and jaw were moving, and she was making animal like noises, rather than any coherent speech, and was not aware of her surroundings. In his evidence, Professor Deakin said she was seriously unwell and in need of urgent medical care. He did not say that she was at serious and obvious risk of dying. 37.At 20.22 Louella’s mother texted the appellant imploring him to message her that Louella was all right. At 20.23 the appellant responded in an incoherent text which was the result of predictive text. At 20.24 Louella’s mother texted again, asking for the location of Louella and the appellant. At 20.25 Ezra Campbell texted the appellant to say that Louella’s mother was coming to get her, and at 20.26 the appellant replied in two texts: “Na, say cool off” and “Send med tho”. At 20.29 the appellant sent a Google map pin of his location to Ezra Campbell, and the message “See me on Google Maps!”. Ezra Campbell replied asking what the pin was, and the appellant explained that it was where they were. Ezra Campbell replied again at 20.34, saying that he had not got Google Maps on his phone. 38.At 20.45 the appellant made a 2 minute 55 second audio recording in which he could be heard calling out to Louella, asking whether she could hear him and telling her to stop eating thorns (brambles), because she was just going to cut herself in the process. Louella was groaning and moaning and was not responding to the appellant. She appeared to lack any coherent awareness of her surroundings. 39.At 20.49/20.50 the appellant sent Ezra Campbell a series of texts: “If u could go … G send meds … To that location”, to which Ezra Campbell replied in two texts: “I don’t have google maps” and “Can’t download it don’t let me see it”. At 20.52 and 20.53 the appellant replied in two texts: “I can’t get bagged” (i.e. arrested) and “Ukno Feds on them tings round here”. Ezra Campbell replied at 20.55: “Fam just act like you don’t know her”, and there was then a two minute call between the two of them, during which the appellant tried to explain where they were, but the only landmark that Ezra Campbell was able to glean was barbed wire at the edge of the wood. 40.Louella’s sister texted the appellant asking him to let her know that Louella was ok, and at 20.54 Louella’s mother texted the appellant imploring him to let her know whether he had got to a medical tent. At 20.58 Louella’s father also texted to ask whether the appellant had got Louella to a medical tent. Then at 21.04 Ezra Campbell texted the appellant and told him that the medics were coming to the Ambient Forest (where, as indicated above, he had erroneously assumed from the outset that the appellant and Louella had gone). 41.At 21.07 the appellant sent an audio recording of Louella to Ezra Campbell and then, between 21.09 and 21.13, took some live photographs of her which showed the top of her forehead and nose. There were scratches on both that had not been present in the first video and she was still making unintelligible noises as he tried to rouse her. Having eventually received the audio recording, Ezra Campbell texted the appellant at 21.17 saying: “Just get to the ambient forest bruv”, then “If it’s that urgent there’s nothing else I can do” and then “It sounds bad though g WTF”. 42.At 21.22 Louella’s brother texted the appellant asking if there was any news, and at 21.46 Ezra Campbell asked him whether he was with the medics yet. At 22.16 Louella’s mother texted Louella, imploring her to let the family know that she was OK. At 22.30 the appellant sent two texts to Ezra Campbell saying: “She just kooled Down” and “So Ima carry her”, followed at 22.31 by “If the fam ask say a ra don have us 2cb”. At 22.32 the appellant recorded a note on his phone which read: “She layed benive wit. ME, nettles n thorns, Enteral bled, we’re her Heart was torn.” At 22.41 and 22.42 the appellant took more live photographs of Louella which showed that her hands were covered in scratches which had not been present in the first video that he had recorded, that she was still making unintelligible sounds, and that her condition appeared to be deteriorating. 43.At 22.45 the appellant sent Ezra Campbell a series of texts repeating things he had said a little earlier: “It’s prohibited off .. Ima try carry her If the fam say … say a random gave her 2cb”. 44.In the period from 22.47 to 22.56 the appellant was variously in contact with Louella’s brother and father – indicating that he was going to carry her down (as others could not find them); that she would be fine; that they would sleep it off “after meds deal did herself”; that he would make sure that she got medical help; and that he did not want to leave her. Thereafter the appellant sent his pin location to Louella’s mother – though again there were problems in opening it after receipt. At 23.2023.24 Louella’s father texted the appellant telling him that he and Louella’s mother had arrived at the White Gate and to send the Google Maps location to him – which the appellant later did. Thereafter, another search began. 45.At 23.24 and 23.25 the appellant took more live photographs of Louella. She was lying down and covered by a black coat. Professor Deakin considered that she was most likely dead in the 23.25 photograph. 46.At around 23.30-23.45 the appellant emerged from the wood and told the two guards that he encountered that his girlfriend (who was in the wood) had taken an overdose. They had torches and accompanied him back into the wood but were unable to find Louella at that stage. The appellant continued to search alone, but without success. However, Louella’s body was eventually found at 00.59 on 11 September 2017. She was lying on her back, with her head on her chest, and had scratches and bruises to the body. Empty packaging for Valium, and a small bag containing 218mgs of ketamine, were recovered from her outer clothing which was discarded nearby. The lights at the adjacent festival site were readily visible from where she was. The interviews 47.The appellant’s account given in a series of interviews contained much which was untrue, for example that he had never supplied drugs to anyone or consumed drugs himself at the festival. He said Louella had purchased the drugs (untrue) and had starting tripping after taking some acid (a partial truth). He explained that he had called her mother because he was worried and she told him to get help from someone in a ‘high vis’. That was essentially true, but he then said he had covered Louella with his jacket, found help but that they could not find her. As we know, that happened hours after his attempt to call Louella’s mother and their subsequent conversations. He spoke of another call from Louella’s mother, who had again asked him to get assistance. So he had gone off again and had found the same man. He would have carried Louella himself, but her mother had said to find a ‘high vis’. He had sent a pin location to Louella’s parents to let them know where he and Louella were, and he had then covered Louella and had run to get help. At best, this was a conflation of a series of events but it was inaccurate. 48.The appellant described holding Louella’s arms and torso towards him to stop her from harming herself with the nettles that she kept eating and scratching against her face. She had many bruises on her hands and he had tried to rip thorns from her hands – which had resulted in cuts to his own hands. At first, he had thought that she was joking (as she had “done stuff” like that before) but when she had carried on it had started to worry him. He had been fully in control of himself and did not think that “it would be such a life and death situation”.49.In what was likely to be a reference to Ezra Campbell, the appellant said that a friend had said that he would get help, which he thought would arrive within five to ten minutes. When that did not happen, he tried to contact other people. He had ensured that Louella had got the medical attention that she needed and had tried to give her good medical care. He had not called 999 because others had said that they were sending help, but then said that he had not done so because there was no signal. However, he agreed that he had had enough signal to send a pin to Ezra Campbell. He said that Louella was still breathing when he left her. 50.His account included that Louella only took drugs (Ecstasy and LSD) at parties. She went to events and raves nearly every weekend. She must have taken 2C-P. The expert evidence 51.The prosecution relied on the evidence of four experts: Dr Delaney (a pathologist); Dr Morley (a consultant in clinical biochemistry and toxicologist); Miss Pagdin (a forensic toxicologist) and Professor Deakin (a consultant in anaesthetics and critical care, and Professor of resuscitation and prehospital emergency medicine at Southampton University). Dr Morley identified the drugs traces of which had been found in Louella’s body, but explained that it was not possible to calculate how much of each she had taken. That was confirmed by Miss Pagdin. 52.Dr Morley explained that the traces of drugs found in the appellant’s system were consistent with recreational use and, so far as the traces of 2C-P were concerned, all he could say was that they were indicative of the ingestion of either a small amount several hours before the samples were taken, or larger amounts over the preceding days. Indeed, Dr Morley accepted that the appellant may not have been under the influence of 2C-P at the time that the video footage was recorded, and that his demeanour and toxicology results may have reflected 2C-P use prior to 10 & 11 September 2017. 53.Dr Morley explained that 2C-P was a stimulant drug, about which relatively little was known. He had not found any recorded case of 2C-P causing death, but some evidence of potentially fatal outcomes being avoided by medical intervention. He referred to a newspaper article from the United States that said that people had presented at hospital after they had taken 2C-P. They were reported as having been given cardiopulmonary resuscitation, which, he accepted, was weak or “soft” evidence, and he was ultimately happy for it to be ignored. He also referred to two peer reviewed papers which concerned a total of six patients who had taken 2C-P. The symptoms described were agitation and hallucinations, making repeated statements, very fast heart rates, high temperatures in some and dilated pupils. None required any significant medical intervention, rather they were variously given Valium or advised to rest. Only three had had fast heartbeats which did not result in any cardiovascular instability. Such symptoms were typical of the group of stimulant drugs from which 2C-P came and were reflected in how Louella presented in the video footage taken by the appellant. Drugs in the group might, Dr Morley continued, cause seizures but there was no reported evidence of seizures from 2C-P. The effects of a drug from the group would start after 30 to 60 minutes, with a peak between three and five hours (or possibly longer), and with the overall effects possibly lasting for 20 to 24 hours. 54.Dr Morley said that at low concentration ketamine might have had a stimulatory effect whereas at high levels it would have had an anaesthetic effect. It was, however, impossible to tell how much of it that either Louella or the appellant had taken. MDMA (Ecstasy) looked very similar to 2C-P, and taken with it was likely to increase the stimulant effects of hallucinations, high temperatures, faster heart rate etc. In any event, it was possible that, with a sufficiently large dose, 2C-P alone could cause an abnormal heartbeat, but he could not say that had happened in this case. He also accepted that he had largely relied on the known effects of other drugs in the same group as the basis for his evidence as to the likely effects of 2C-P. 55.Miss Pagdin confirmed that 2C-P was closely associated with MDMA, and that both were in a group known for its hallucinogenic properties. She further confirmed that there was very little literature on 2C-P as it was not commonly abused. Anecdotal evidence (the danger of which the judge warned the jury about) indicated that its effects included potent hallucinations, agitation, and hypotension – with higher doses being thought to lead to a fast heart rate. 56.Her evidence initially was that she believed that 2C-P could have played a role in Louella’s death, by increasing both heart rate and blood pressure. But in crossexamination, she accepted that she could not say that 2C-P had actually played any role in causing Louella’s death. 57.As to MDMA, Miss Pagdin said that the reported effects included euphoria, benevolence to others, heightened perception of visual and tactile sensory stimuli, hyperactivity, and increased heartbeat; that after the stimulant effects subside, excess fatigue and anxiety can occur; and that toxic effects can include elevated body temperature, seizures and kidney failure leading to death, although there was no evidence that that was the cause of Louella’s death. 58.Finally, considering the combination of 2C-P and MDMA, Miss Pagdin said that they could have a more prolonged and pronounced effect. 59.Dr Delaney (the pathologist) explained that his Post Mortem examination on Louella’s body did not reveal the cause of her death. Therefore, he had sought the opinions of Dr Morley and Miss Pagdin, and had thereafter relied on Dr Morley’s opinion as to the effects of 2C-P. 60.Dr Delaney continued that, whilst it was not possible to determine the precise mode of death, it was likely to have involved a number of factors. The use of drugs, and in particular 2C-P, had been a significant contributory factor, and had been the precipitant factor for Louella’s prolonged agitated behaviour. That prolonged behaviour and the effects of the stimulant drugs would be expected to be associated with physiological responses of increased heart rate, increased body temperature and increased blood pressure. Over a prolonged period that would result in fatigue, decreased effectiveness of breathing, decreased oxygen availability and metabolic complications such as lactic acidosis. The admitted period of restraint would have resulted in increased oxygen demand due to physical exertion and may also have reduced Louella’s ability to breathe properly at a time of increased oxygen demand. The eventual position of her head on her chest may have compromised her airway, and further reduced her ability to breathe effectively. Together those factors would have pre-disposed her to cardio respiratory arrest. 61.The definitive cause of death could not be established save that it flowed from the ingestion of the combination of drugs found in her system. Dr Delaney settled on the following narrative: “Sudden unexpected death following the use of 2CP, ketamine and MDMA (Ecstasy), with a subsequent prolonged episode of altered behaviour including agitation, physical exertion, restraint and possible positional airway compromise”. 62.Only Professor Deakin dealt with causation. He said in his statement: “In view of the lack of previously documented deaths from 2CP, the combined effect of three stimulant drugs and the unknown mechanism that resulted in Louella’s death, it is not possible to state beyond reasonable doubt that earlier medical intervention would have been able to save Louella’s life once she had ingested the 2CP.” In his first report he had put it in similar terms but added “I do believe however that on the balance of probabilities, medical intervention at any time prior to 21.10 is likely to have saved Louella’s life.” He maintained that position in cross examination but added various descriptions on the chances in answer to questions. He said: “I say in that report that before 21.10 she had a very good chance of survival, but I wasn’t saying that after that time there wasn’t. I say that there was still a good chance of survival after that time, I confirmed that that was my opinion. At 21.10 she was still making noises, she was not unresponsive at that point. In my second report I sought to clarify this. In my opinion whilst she was still breathing there was a good chance of survival with treatment.” 63.He had clarified his view in his second report. The clarification was prompted by a reminder from a police officer of what he had said in a discussion. He put the chance of survival at 21.10 at 90% and “certainly on the balance of probabilities”. He said variously that “had the deceased received appropriate care earlier that evening … she would have recovered”; that “so long as she was breathing her chances of survival are very high or very good”; but stated that “it is not possible to be certain beyond reasonable doubt as to whether medical intervention could have reversed [Louella’s] demise”. His observation that “on the balance of probabilities” medical intervention at any time before 21.10 was likely to have saved her life was not accompanied by evidence of when Louella’s condition clearly became life-threatening and thus the appellant had a duty to act. He added that whilst on the balance of probabilities earlier medical intervention could have saved her life general experience with other recreational drugs indicated that survival was by no means guaranteed even with “timely” medical intervention. 64.The relevance of 21.10 was the recording showing Louella at that time. 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.