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.