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May 24, 2018

Adam Vaitilingam QC led for the prosecution in the recent murder trial of R v Berlinah Wallace. It was a landmark case in that it was the first ever prosecution for murder of a defendant whose victim had chosen to end his life by euthanasia.

The issue of whether a murder charge was justified was first heard by Mr Justice Royce, at a dismissal hearing. He decided that it was. At the subsequent trial, Mrs Justice May disagreed, ruling that this could not be a case of murder. The prosecution appealed that terminating ruling and – continuing the see-saw of legal opinion – the Court of Appeal overturned her decision and reinstated the murder charge. They ruled that a jury could convict a defendant of murder if they were sure (a) that the attack was a significant and operating cause of death and (b) that it was reasonably foreseeable at the time of the attack that the victim might take his life in the future as a result of such an attack.

During the four-week trial at Bristol Crown Court, Ms Wallace’s primary defence was that she had not deliberately thrown acid at Mark van Dongen and that she was innocent of all charges. Her secondary defence was that this was not, in any event, a case of murder.

The jury rejected her primary defence and convicted her of deliberately throwing the acid with intent to disfigure and maim. On the murder charge, it was apparent from questions they asked that they were unclear about the meaning of “reasonable foreseeability”, as set out at (b) above. Having had that clarified, in due course they acquitted of the murder charge. (Manslaughter had been left to them as a possible verdict, but on the facts of the case it was a highly unlikely verdict; it would have required a finding that she deliberately threw the acid but did not intend serious harm).

For the offence of throwing the acid, Ms Wallace was sentenced to life imprisonment, with a minimum term to serve of 12 years.

It is certain that the judicial rulings in the case, and in particular the decision of the Court of Appeal, will be closely scrutinised by academic writers considering the impact on the law of causation more generally.