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.