Cheshire CASE SUMMARY - VERY GOOD PDF

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Positive or Neutral Judicial Treatment

*251 R. v David William Cheshire Court of Appeal 22 April 1991

[1991] 93 Cr. App. R. 251 (Lord Justice Beldam, Mr. Justice Boreham and Mr. Justice Auld): March 14, 19, April 22, 1991 Homicide—Murder—Causation—Medical Treatment—Negligent Treatment of Victim's Injuries—Whether Negligence Cause of Death. During an argument the appellant fired two shots at a man who died about two months later in hospital. The cause of death was given as “cardio—respiratory arrest due to gunshot wounds of the abdomen and leg”; but the appellant, who was charged with murder, called expert evidence at his trial to the effect that the victim had suffered a rare but not unknown complication due to the treatment he had received, and that medical negligence had caused his death. The judge directed the jury that, in order to find that the chain of causation between the wounds inflicted by the appellant and the death of the victim had been broken by medical negligence, they would have to find that the doctors' treatment of the victim had been reckless in the sense that they did not care whether he lived or died. The appellant was convicted, and appealed against his conviction on the ground that the judge had misdirected the jury on the issue of causation in that the terms of his direction had virtually withdrawn from them the issue of medical negligence as the cause of death, since they would be unlikely to accept that a doctor would be reckless in the manner described by the judge. Held, that in a case where negligent medical treatment of injuries inflicted by the accused is put forward by the defence as the cause of death rather than the in juries themselves, the jury should be directed that in order to find that the acts of the accused caused the death they need not find that those acts were the sole or even the main cause of death, provided that they made a significant contribution to it. Even where negligence was the immediate cause of death, only where it was so independent of the accused's acts and so potent a cause in itself as to make his contribution insignificant, could it exclude his responsibility, and that would only be in the most extraordinary and unusual case. Provided the jury were satisfied that the actions of the accused had contributed significantly to the death of the victim it was not for them to evaluate competing causes. In the present case, therefore, the judge had erred in putting forward for the jury's consideration the degree of fault in the medical treatment rather than its consequences. There had, however, been no miscarriage of justice, since regardless of the competence of the doctors attending the victim, the complication which he suffered was a direct result of the appellant's *252 acts, which remained a significant cause of his death. The appeal was, accordingly, dismissed.

Pagett (1983) 76 Cr.App.R. 279 approved. Smith (1959) 43 Cr.App.R. 121, [1959] 2 Q.B. 35, Malcherek and Steel (1981) 73 Cr.App.R. 173 and Evans and Gardiner (No. 2) [1976] V.R. 523 considered. [For causation in murder, see Archbold, 43rd ed., para. 20-5.] Appeal against conviction. On January 31, 1989, at the Central Criminal Court (Judge Richard Lowry Q.C.) the appellant was convicted of murder and sentenced to life imprisonment. The facts appear in the judgment. The main ground of appeal was that the trial judge had wrongly directed the jury on the circumstances in which the chain of causation could be regarded as broken. The appeal was argued on March 14 and 19, 1991. James Stewart, Q.C. and Jonathan Goldberg, Q.C. (assigned by the Registrar of Criminal Appeals) for the appellant. David Evans and Miss Jocelyn Sparks for the Crown. Cur. adv. vult. April 22. BELDAM L.J. read the judgment of the Court. The appellant, David William Cheshire, was convicted of the murder of Trevor Jeffrey at the Central Criminal Court on January 31, 1989. He was sentenced to life imprisonment. He now appeals against conviction with the leave of the single judge. On March 14 we heard an application under section 23 of the Criminal Appeal Act 1968 to receive fresh evidence. For the reasons then given, we rejected that application and then heard argument on the appeal. We reserved our judgment. At about midnight on December 9/10, 1987, the appellant was in the “Ozone” fish and chip shop in Greenwich when he became involved in an argument with Trevor Jeffrey, the deceased. The appellant produced a handgun and fired it at the ceiling. The deceased grappled with him but the appellant fired two more shots. They were fired at the deceased at close range. One bullet entered the top of the thigh and shattered the thigh bone. The other entered the deceased's stomach. The appellant fled from the shop, and an ambulance and the police were summoned. The deceased was taken to the Accident and Emergency Department of the Greenwich District Hospital. There, in the early hours of the morning, he underwent surgery. Both bullets had caused extensive damage. The thigh injury was cleaned, the bone joined and his leg placed in traction. There was substantial damage in the abdominal cavity which was contaminated. A fairly extensive bowel resection and wound toilet was carried out and he was given blood transfusions. In due course he was transferred to the intensive care unit. He there developed respiratory problems and his breathing had to be maintained by a ventilator using a tube placed in the windpipe. A week later this tube

was replaced by a tracheotomy tube which remained in place for the next four weeks. His condition did not improve and after a marked deterioration on Christmas Day a further operation to explore his abdomen was carried out. From time to time he suffered from chest infections, from vomiting and from discharges from the abdominal wound and it was not until February 2 that he began to show improvement. During his time in intensive care the deceased's lungs had become congested and filled with fluid and he suffered considerable difficulty with breathing. On February 8 he again complained of difficulty in breathing and it was at first thought that this was a recurrence of the problem with his lungs. An X-ray was taken but it showed no recurrence of lung trouble. Whilst in intensive care the deceased had on several occasions shown signs of *253 anxiety and a tentative diagnosis was made that the intermittent problem with his breathing of which he complained after February 8 was due to attacks of anxiety. He was seen by several doctors of differing experience during the ensuing week. He was probably seen by Mr. Harrison, the consultant general surgeon at the Greenwich District Hospital, on one occasion. He was also seen by the surgical registrar, Mr. Saunders, and the orthopaedic registrar. Later, on the evening of February 14, he complained of further difficulty with breathing and was attended by a house surgeon, Dr. Clare Jones. Dr. Jones had qualified in the summer of 1987 and had been a medical houseman for six months before becoming house surgeon on February 1. She was worried about the deceased's condition and sat with him for three-quarters of an hour recording in the notes that he was making a noise through his respiratory passages which she described as “stridor.” The deceased's condition deteriorated and the medical registrar was called. Urgent resuscitation, including cardiac massage, was given but the deceased died shortly after midnight. At postmortem it was found that the deceased's windpipe had become obstructed due to narrowing near the site of the tracheotomy scar. Such a condition is a rare but not unknown complication of intubation of the windpipe. The deceased's windpipe had become so narrowed that even a small amount of mucus could block it and cause asphyxiation. The experienced pathologist who conducted the postmortem gave evidence that the immediate cause of death was cardio-respiratory arrest: “…. due to a condition which was produced as a result of treatment to provide an artificial airway in the treatment of gunshot wounds of the abdomen and leg.” And he said: “In other words, I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.” For the appellant it was conceded that the sequence of events which had led to the deceased's death was that described by the pathologist but a consultant surgeon, Mr. Eadie, gave it as his opinion that by February 8, 1988 the wounds of the thigh and the abdomen no longer threatened the life of the deceased and his chances of survival were good. In his view: “The cause of his death was the failure to recognise the reason for the sudden onset and continued breathlessness after 8th February and the severe respiratory obstruction evidenced by stridor on 14th February.”

The doctors who examined and treated the deceased in the week before his death ought to have diagnosed the serious clinical condition from which he was suffering. Mr. Eadie was particularly critical of the failure to appreciate the serious implications of “stridor” on the evening of February 14. The deceased would not have died if his condition had been diagnosed and properly treated. The doctors had been negligent and this was the cause of death. One question for the jury at trial therefore was whether the Crown had proved, so that they were sure, that the shots fired by the appellant had caused the deceased's death. In this appeal it has been argued that the learned judge misdirected the jury on this issue. The appellant complains of a passage in which the judge said: “My direction to you is this, and I have to take the responsibility and you have to observe my direction: If the treatment could have been better, if it is no more than that, then the bullets caused the death, even if the treatment was incompetent, negligent. The bullets caused the death. For you to find that the chain was broken, the medical treatment or lack of medical treatment must be reckless. Mr. Boal when opening used the words ‘gross negligence.’ Mr. Eadie observed to you that gross negligence he regarded as the same as recklessness *254 and he is right, and I am using the word ‘recklessness’ which is a strong word. Mere carelessness or mere negligence are not recklessness. Reckless conduct is where somebody could not care less. He acts or fails to act careless of the consequences, careless of the comfort and safety of another person. It is that which you are looking for when you examine the medical evidence. The question is: Do you see it, because nothing less alters the situation. In closing speeches Mr. Boal spoke of a high degree of negligence. Mr. Stewart when cross—examining the witnesses spotted and highlighted acts which he said were not just inexperience, but negligence, and you may agree with him. But the direction I give you is what I have spoken. You are looking for recklessness.” In this paragraph it is said that the judge virtually withdrew from the jury consideration of the doctor's failure to diagnose the deceased's clinical condition as the cause of his death because no juror would be likely to accept that a doctor treating a patient was reckless in the sense that he could not care less whether the patient lived or died. With hindsight it is easy to see how the learned judge was drawn into including this passage in his direction. Counsel for the Crown had opened the case on the basis that nothing less than gross negligence on the part of the doctors treating the deceased would suffice to break the chain of causation between the shooting and his death. Mr. Eadie in evidence had pointed to a number of respects in which he contended that the treatment afforded to the deceased had fallen below the standard to be expected of competent medical practitioners. But when asked whether in his opinion the totality of failures amounted to “gross negligence” he said that it was negligent but not grossly negligent and he was asked: “(Q) When you say not gross, is that the word, the word ‘gross,’ that you are using in what sense?—(A) I apply it as being something which is a reckless act. This was not a reckless act, this was an act of negligence which should not have taken place. It was not reckless.”

That is how the word “reckless” crept into the case and why it was used by the learned judge in the context quoted. In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the accused's criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge. We think the matter cannot be better put than it was by Goff L.J., as he then was, in the case of Pagett (1983) 76 Cr.App.R. 279. At p. 288 he said: “In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute. What is in dispute is more likely to be some other matter: for example, the identity of the person who committed the act which indisputably caused the victim's death; or whether the accused had the necessary intent; or whether the accused acted in self-defence, or was provoked. Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. *255 One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the Latin term.” Goff L.J. went on to express his indebtedness to the work of Professors Hart and Honorâ in Causation in the Law (2nd ed., 1985). We too are indebted to section IV of Chapter 12 of that work. Under the heading “Doctor's or Victim's Negligence” the authors deal with cases in which an assault or wounding is followed by improper medical treatment or by refusal of treatment by the victim or failure on his part to take proper care of the wound or injury. The authors trace from Hale's Pleas of the Crown (P.C. i, 428) and Stephen's Digest of the Criminal Law (art. 262) the emergence of a standard set by Stephen of common knowledge or skill which they suggest appears to require proof of something more than ordinary negligence in order that one who inflicts a wound may be relieved of liability for homicide. And they refer to most American authorities as requiring at least gross negligence to negative causal

connection. English decisions, however, have not echoed these words. In conclusion at p. 362 the authors state: “Our survey of the place of doctor's and victim's negligence in the law of homicide, where differences of policy between civil and criminal law might be expected to make themselves felt, yields a meagre harvest. (i) On Stephen's view, which has some modern support, there is no difference between civil and criminal law as regards the effect of medical negligence; in each case gross negligence (want of common knowledge or skill) is required to negative responsibility for death….” Whatever may be the differences of policy between the approach of the civil and the criminal law to the question of causation, there are we think reasons for a critical approach when importing the language of the one to the other. Since the apportionment of responsibility for damage has become commonplace in the civil law, judges have sought to distinguish the blameworthiness of conduct from its causative effect. Epithets suggestive of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty. In the criminal law the jury considering the factual question, did the accused's act cause the deceased's death, will we think derive little assistance from figures of speech more appropriate for conveying degrees of fault or blame in questions of apportionment. Unless authority suggests otherwise, we think such figures of speech are to be avoided in giving guidance to a jury on the question of causation. Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause. As Professors Hart and Honorâ comment, treatment which falls short of the standard expected of the competent *256 medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary. Acts or omissions of a doctor treating the victim for injuries he has received at the hands of an accused may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the accused but it is most unlikely that they will be. We have not been referred to any English authority in which the terms of the direction which should be given to a jury in such a case have been considered. We were referred to the case of Jordan (1956) 40 Cr.App.R. 152 in which the appellant who had been convicted of murder sought leave to call further evidence about the cause of the victim's death. The application was granted and evidence was received by the court that the stab wound from which the victim died eight days later was not the cause of the victim's death. The deceased had died from the effects of sensitivity to Terramycin which had been given to him after his intolerance to it was established and in abnormal quantity. The court considered that the introduction into the system of the victim of a substance shown to be poisonous to him and in quantities which were so great as to result in pulmonary oedema leading to pneumonia were factors which ought to have been before the jury and which in all probability would have affected their decision. Jordan's case was described in the later case of Smith (1959) 43 Cr.App.R. 121, [1959] 2 Q.B. 35 as a very particular case dependent upon its exact

facts. The appellant in Smith had been convicted at court—martial of the murder of another soldier by stabbing him. The victim had been dropped twice while being taken to the medical reception station and was subsequently given treatment which was said to be incorrect and harmful. Lord Parker C.J., giving the judgment of the Court—Martial Appeal Court, rejected a contention that his death did not result from the stab wound. He said at p. 131 and p. 42 respectively: “It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can proper...