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. The summing up 69. The judge explained the ingredients of the offence which the prosecutions had to prove. On causation the judge directed the jury as follows: “…The breach of duty must have been a substantial contribution to the deceased’s death. It doesn’t have to be the only cause of death, there were different concurrent causes for the death of the deceased in this case. According to the evidence of the pathologist, Dr Delaney, it was drugs toxicity with a subsequent prolonged period of altered behaviour, including agitation, physical exertion, restraint, and possible positional airway compromise. It was the opinion of Professor Deakin that intervention before it was too late might have saved her, therefore this means that there were several different factors in play, which caused the death of the deceased. 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? You will recall also, ladies and gentlemen, that Professor Deakin could not say beyond reasonable doubt that the deceased would not have died anyway. He said that at its highest her chances of survival were at 90%, but this was if she had received medical help before 21.10. However, this does not mean that you can’t be sure that the breach of duty was a substantial cause of death. As I’ve already directed, to prove this element of the offence the prosecution must make you sure that the breach of duty was a substantial cause of death, not the only cause. Professor Deakin’s opinion was that up to the point of unresponsiveness there was a very good chance of survival, after that time there was still a good chance, but it would have reduced quickly. You will need to consider his expert evidence with care on this important issue. You will appreciate that Professor Deakin’s opinion was strongly challenged by the defence, I will remind you of this when I summarise the evidence. You should also consider the circumstances of how easy or difficult it was to obtain medical help, if it was difficult due to phone signal problems or the layout of the ground, then it may reduce the contribution to the cause of death by the breach of duty, the reverse may be the case if it was easy to obtain medical help. Whilst this is relevant to whether there was a breach of duty, it may also be relevant to the cause of death, if it was very difficult to obtain medical help as opposed to being very easy, the contribution to the cause of death by the breach may become less significant, if it was very easy it may become more significant.” 70.The judge gave an expert evidence direction, during the course of which he said that the experts had not given evidence as witnesses of fact, but of their expert opinion based upon their experience and expertise; and that it followed that they were unlikely to be able to express their opinion in terms of being sure or beyond reasonable doubt. At the end of his summary of the evidence of the four experts, he added: “Well, ladies and gentlemen, you should also bear in mind that, as an expert, Professor Deakin, as indeed of all experts, are not seeking to give evidence of which they are 100% sure or 95% sure, although Professor Deakin referred to 90%. They’re there to tell you what their opinion is, and it’s for you to decide whether you’re sure that, that you can accept that evidence or not. And so it’s not simply taking that the expert says that he is not 100% sure so I can’t be, you consider this as all expert evidence against all the other evidence that you consider and come to a decision as to whether you are sure that it was a substantial contribution of death or not”. 71.At the conclusion of the summing up, Mr Kamlish invited the judge to clarify his directions on causation by giving a further direction addressing the issue that, even taken at its highest, Professor Deakin’s evidence was that there was a 10% possibility that medical intervention could never have saved Louella’s life, and that unless there was evidence to fill the (arguably wide) gap between that and the jury being sure that a breach of duty by the appellant had caused or significantly contributed to Louella’s death, the appellant was entitled to be acquitted. The prosecution submitted that no further direction was required. In the result, the judge declined to give any further direction. The appeal 72. In granting leave in relation to causation, the single judge noted that the test applied by the judge was whether or not Louella would have lived had she been treated in time by a medical practitioner, and observed that the material question was whether the appellant’s breach of duty had caused or made a significant contribution to the cause of death. That had to be answered by reference to a time when Louella’s condition was already clearly life-threatening. The evidence in support of the prosecution case could only come from the experts, and the evidence of Dr Morley and Ms Pagdin went to the effects of 2C-P and the other drugs that Louella had ingested, rather than to causation. Equally, Dr Delaney’s evidence did not identify when Louella’s condition would clearly have been life-threatening, or what the effect of the breach of duty to which the appellant had then become subject may have been. The critical and only evidence on those issues was therefore that of Professor Deakin. The single judge continued: “In the light of this evidence, I consider it to be reasonably arguable that the jury could not be any more certain than Professor Deakin and, that being so, causation could not be established to the criminal standard. In my judgement, the evidence in this case is at least arguably distinguishable from the evidence summarised in Misra; and Misra does not establish a principle that causation is always a matter for the jury, whether or not there is evidence to support a finding adverse to the defendant”. Summary of the submissions The appellant 73.Mr Kamlish submits that the judge should have acceded to the submission of no case to answer. The jury had to be sure that the evidence, taken at its highest, established that a breach of duty by the appellant had caused, or made a significant contribution to, Louella’s death. In Misra, upon which the prosecution and judge relied, there was expert evidence to support a finding that causation was established to the criminal standard of proof. The serious infection from which the victim was suffering would have been obvious to a medical student. Up to a certain time the expert was sure that the victim would have survived if the requisite steps had been taken, but that after that time he could not be sure that the victim would have survived. The court had rejected the suggestion that a submission of no case should have succeeded, saying (at paragraph 22) that “the causation issue was entirely for the jury.” That observation presupposed that that there was evidence which would enable a jury to be sure. 74.The causation question must be asked by reference to a time when Louella’s condition was already clearly life-threatening. It was not sufficient that she needed medical intervention but that there was a serious and obvious risk of death. The timings must take into account the natural delays that would inevitably have occurred even if the appellant had acted appropriately and promptly once Louella’s condition had clearly become life-threatening. 75.On the most optimistic view of Professor Deakin’s varying opinions, there was a realistic possibility that, even from the time of ingestion, Louella would not have survived with medical attention. There was no evidence on which the jury could reach a different conclusion from the Professor on the issue of whether Louella would have survived with medical intervention. As the single judge rightly pointed out, the critical (and only) evidence in relation to causation was the Professor’s, and neither the newspaper report nor the two small peer reviewed papers provided any independent or additional support for a conclusion adverse to the appellant. 76.The position in the appellant’s case was different as (in contrast e.g. to the expert evidence about the infection in Misra) little was known about 2C-P. None of the experts could talk about it with any sense of authority or clarity, and thus any conclusions about survivability were little more than speculation. 77.In addition, Louella had consumed other drugs, and Dr Delaney had concluded that it was “not possible in this case to definitively determine the precise mode of death” and had instead provided a narrative summary. 78.Dr Morley had agreed that the US newspaper report should be ignored. Equally whilst, by reference to the effects of other stimulant drugs, Dr Morley had suggested that increased heart rate could possibly lead to an irregular heart beat such that there might be a need for defibrillation, there was no reported clinical evidence that 2C-P consumption had ever needed such treatment. Rather, the clinical evidence related to a total of six patients, some of whom had been given Valium, and others had simply been kept under observation. 79.Miss Pagdin could not say that 2C-P had played a role in causing Louella’s death. In his witness statement (which was in evidence) Professor Deakin had said that given the lack of previously documented deaths from 2C-P, and the unknown mechanism that had resulted in Louella’s death, it was not possible to say beyond reasonable doubt that earlier intervention would have been able to save her life. In his first report, which was also in evidence, Professor Deakin had expressly disavowed the proposition that causation could be proved to the criminal standard but said that medical intervention before 21.10 probably would have saved her life. 80.In cross-examination, Professor Deakin had repeatedly indicated that he stood by his comment in relation to 21.10, whilst also giving evidence that, up to the point of unresponsiveness, there was a very good chance of survival. However, the only safe conclusion that the jury could draw from his evidence as a whole was that medical assistance prior to 21.10 would probably have saved Louella’s life, a conclusion which he had variously described as being “on the balance of probabilities”, “very likely” and “90%”. In any event, in view of what the Professor had said in his witness statement, and from whenever a duty of care arose, the jury could not be sure that Louella would not have died in any event. 81.Thus, the evidence taken at its highest meant that the jury could not be sure that, even at an earlier stage in the evening, a lack of medical assistance had caused or significantly contributed to Louella’s death. Equally, the lack of knowledge about 2C-P meant that there was no evidential basis upon which the jury could reject the possibility (if, as was the prosecution case, Louella had taken a large or “bumped up” quantity of 2C-P) that she would have died, even with medical assistance. Therefore, the jury could not be sure that a grossly negligent breach had caused or substantially contributed to Louella’s death. The respondent 82.Miss Darlow submits that the prosecution had advanced sufficient evidence of causation. To remove the case from the jury would have usurped the function of the jury. 83.We have considered and rejected the submission advanced on behalf of the respondent in the appeal, but not at trial, that it was sufficient for the prosecution to prove that the appellant’s gross negligence had deprived Louella of a significant or substantial chance of survival that was otherwise available to her at the time of that negligence. 84.Miss Darlow suggests that Misra involved an almost identical expert opinion scenario, albeit consequent upon medical negligence by doctors over a period of two days in the post-operative care of a patient who developed a serious infection, which it was alleged that they had negligently failed to realise. The evidence of the two prosecution experts was summarised between paragraphs 18 and 21 of the judgment. They too used a variety of descriptors of the chances of survival. The circumstances are indistinguishable from those in this appeal yet at paragraph 22 of his judgment, Judge LJ said: “In our judgment the submission that there was no case to answer on the causation issue was untenable….The causation issue was entirely for the jury. If the submission was upheld, the judge would have usurped its function”. 85.Miss Darlow further submits that the prosecution had relied at trial on a combination of evidence from its four expert witnesses. In refusing the submission of no case the judge had summarised the evidence of Professor Deakin and had indicated that it was for the jury and not the court to assess the experts’ evidence. He had thereafter directed the jury correctly and in accordance with Gian that juries are not required to assess evidence on the basis of scientific certainty, nor are they bound to consider hypothetical possibilities. Thus, Miss Darlow asserted, whilst Professor Deakin could not with certainty exclude the possibility that Louella would have died in any event, a separate and independent consideration of the issue fell properly within the province of the jury, who had been properly directed as to both the ambit of the relevant evidence and the role of expert witnesses. Indeed, the role of the Professor in giving an expert opinion necessitated taking into account possibilities which the jury, for their part and performing a separate and distinct function, may have considered that they could confidently regard as hypothetical, or so unlikely as being safely and reasonably discounted. So, in analysing the Professor’s evidence that: “…Obviously drugs can cause deaths, but thousands of people attend for treatment having taken drugs in general and do not die. Sometimes death is inevitable, but usually lives can be saved”, the jury’s evaluation of degrees of probability may legitimately have differed from his. 86.She recognises that there were inconsistencies in Professor Deakin’s evidence but some reliance could be placed on the American newspaper report (found by Dr Morley on an internet search) that suggested apparent successful resuscitation of those having suffered 2C-P induced cardiac arrest and the profession’s clinical ability to provide life-saving intensive care to patients with respiratory or metabolic abnormalities. The inconsistencies, Miss Darlow submits, could be compared with those in the expert medical evidence in Misra. Miss Darlow reminds us that Professor Deakin had said that he regarded sure as being “beyond 95%”. That, she submitted, demonstrated the impossibility of transposing the percentages expressed in medical opinion into the standards that a jury might equate with being sure. 87.The evidence of Professor Deakin that there were no documented deaths from the use of 2C-P was supportive. That evidence could also be put together with the evidence of Dr Morley (the American newspaper report and evidence of the six patients in peer reviewed papers) that, although there were no previous recorded 2C-P fatalities in the literature, there was “some evidence” of potentially fatal outcomes that had been prevented due to medical intervention. Likewise, Louella had MDMA in her system which might have increased the effect, including an abnormal heartbeat. That had a direct and probative relevance to the issue of survivability. Thus, Miss Darlow submits, the additional evidence would have entitled the jury to conclude that Louella would have survived if she had received appropriate medical treatment. The jury was entitled to consider (in conjunction with the evidence of Professor Deakin) the evidence of Dr Morley (with whom Miss Pagdin agreed) that 2C-P had a stimulant effect and could cause an increased heartbeat or heart arrhythmia. That was treatable. Professor Deakin had said that, provided that Louella was actually breathing when found, the chances of her surviving would have been very high, and the live photograph at 22.42 showed that she was still groaning and thus was still breathing. 88.Miss Darlow concludes by submitting that on the most favourable analysis to the appellant of Professor Deakin’s evidence, Louella was deprived, by the appellant’s negligence, of a 90% likelihood of being saved.