This case concerned the issue of causation in gross negligence manslaughter. The rather dramatic facts overshadowed the issue which was whether his negligence caused the death.
Facts
Louella Fletcher (LF) was the long-term girlfriend of CB. She attended the Bestival Music Festival on Saturday, 9 September 2017. She had had her own drugs confiscated by security staff as she entered the festival, a fact that she communicated to CB via text. She also told him that she wanted, ‘that big one’ and he replied that he would bring some.
CB arrived at the festival in the early hours of 10 September and at 16:00 that afternoon, both he and LF were noted by others to be under the influence of drugs. In fact, CD had given LF a drug called 2C-P, which he had ‘bumped up’, either by increasing the dose or by mixing it with another drug.
They then left the site to make their way to a nearby forest, mistakenly understood by others to be the ‘Ambient Forest’ within the Bestival site itself.
They went some 30m into the wood to a position where they were 400m from the festival medical tent. The reception on CB’s phone was poor but he was able to receive and send a number of text messages and to receive and make a number of phone calls. He also took live photos and videos of LF over the course of the next six hours.
Analysis of those videos and photographs showed LF becoming increasingly confused and agitated and eventually losing consciousness. According to the pathologist Professor Deakin, in the last photo taken at 23:25, LF was in all likelihood dead.
Throughout the evening, text messages and phone calls made and exchanged between CB and LF’s family, as well as with a friend at the festival, chronicle the history of the requests for him to seek medical assistance for LF.
At some time between 23:30 and 23:45, CB emerged from the wood and told two security guards that his girlfriend had taken an overdose.
Her body was found at 00:59. It was noted to be scratched and bruised and her head was on her chest. An empty packet of Valium and a bag containing 218mgs of Ketamine were found amongst her clothing.
In interview, CB denied supplying LF with drugs but said that she started tripping after taking acid. He also said that he had covered LF with his jacket before seeking help for her, but said they were then unable to find her, something he said he had done on two separate occasions.
Prior to the trial, he pleaded guilty to supplying LF and her friend with 2C-P on a different occasion. He was convicted of manslaughter and supplying LF with 2C-P and was sentenced to a total of 8½ years, 7 years for manslaughter, 13 months for the drugs offences and 5 months in respect of an activated suspended sentence.
Expert evidence
21:10 became the crucial time at trial, chosen because of a particular recording of LF taken at the time which led the Crown to state that medical intervention before that time was likely to have saved LF’s life.
There were in fact four prosecution experts, a pathologist, a toxicologist/biochemist, a forensic toxicologist and a consultant in critical care.
Very little was known about 2C-P except that it was a stimulant closely associated with MDMA. There are no recorded cases of it having caused death and of the recorded cases of those taking it and who required medical intervention, the intervention was not significant.
Examination of the body did not reveal the cause of death but was recorded as, ‘sudden unexpected death following the use of 2C-P, Ketamine and MDMA, with a subsequent prolonged episode of altered behaviour including agitation, physical exertion, restraint and possible positional airway compromise.’
Professor Deakin was the only person who dealt with the issue of causation. In a statement he said, ‘in view of the lack of previously documented deaths from 2C-P, the combined effect of three stimulant drugs and the unknown mechanism that resulted in LF’s death, it is not possible to state beyond reasonable doubt that earlier medical intervention would have been able to save LF’s life once she had ingested the 2C-P.’
In a report he added, ‘I do believe however, on the balance of probabilities, medical intervention at any time prior to 21:10 is likely to have saved LF’s life.’
The italics are mine, to emphasise the civil burden being used in a criminal trial, something that continued in his second report where he assessed LF’s chance of survival at 21:10 as ‘90%, certainly on the balance of probabilities.’
In evidence he said that ‘it is not possible to be certain beyond a reasonable doubt as to whether medical intervention could have reversed LF’s demise.’ And although he had said that intervention prior to 21:10 was likely to have saved her life, he did not provide any evidence of when that changed so that her condition became life-threatening and, therefore, in respect of the issue of gross negligence manslaughter, when CB had a duty to act.
However, despite the lack of evidence in respect of that crucial issue, the reversal of the test and the use of the civil standard of proof, a submission of no case was rejected.
Gross negligence manslaughter and analysis of the authorities
CB appealed against conviction on the ground that the prosecution had failed to adduce evidence from which the jury could be sure that CB’s negligence was the cause of LF’s death. He also renewed two further grounds, namely that the judge misdirected the jury on causation and that no duty of care arose on the facts of the case.
The ingredients of gross negligence manslaughter were set out in R v Adomako (1995) 1 AC 17, reaffirming the decisions in Bateman (1925) 19 Cr. App. R 8 and Andrews v DPP (1937) AC 576. Those are: i. did the defendant owe a duty of care towards the deceased, ii. if so, did the breach of duty cause the death, and iii. if so, should the breach be characterised as gross negligence and therefore as a crime.
The court then traced the history of gross negligence manslaughter between 2016 and 2019 and identified six elements that the prosecution must prove before a defendant can be convicted of gross negligence manslaughter:
- The defendant owed a duty of care to the victim.
- The defendant breached that duty of care.
- At the time of the breach, there was a serious (something much more than minimal or remote) and obvious (one that is present, clear and unambiguous) risk of death.
- It was reasonably foreseeable that at the time of the breach of duty that the breach gave rise to a serious and obvious risk of death.
- The breach of duty caused or made a significant (more than minimal) contribution to the death of the victim.
- In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to negligence and required criminal sanction.
Causation
The test for causation in homicide cases is that it is sufficient for the prosecution to prove that the act or omission of the accused was a significant contributory cause of the death, rather than the sole or principal cause of death.
In cases of gross negligence manslaughter, the issue often arises in the context of medical treatment in which there will frequently be an underlying condition which causes death. In those cases, the issue is whether the breach of duty was also a substantial cause of death, as it is where a failure to provide or secure medical treatment is alleged.
The approach to such cases was settled as far back as 1882 when Lord Coleridge in R v Morby (1882) 8 QBD 571 stated, ‘…to convict of manslaughter it must be shewn that the neglect had the effect of shortening life.’
That point, that the negligent act or omission has to be proved to have shortened life rather than simply failing to preserve or prolong life, was one that the Crown in responding confused. Relying on R v Sellu (2016) EWCA Crim 1716 they submitted that the test was not whether the breach of duty was a substantial contribution to the cause of death but whether, ‘the jury was sure that the defendant’s negligence deprived the victim of a significant or substantial change of survival that was otherwise available to the victim at the time of the defendant’s negligence.’
That, in fact, had been the position considered and rejected in Morby. In that case, a father, on religious grounds, failed to seek medical attention for his son who had contracted smallpox. The height of the evidence at trial was that the chances of life might possibly have been prolonged had medical intervention been sought, not that it would probably or in fact, would have been prolonged.
Sellu was a case which involved a series of failings by a medical professional, each one of which was said to have been grossly negligent. It is not authority for the proposition advanced by the Crown, something that Sir Brian Leveson P made clear in Sellu stating, ‘…causation could not be established if the gross negligence was after the time, they could be sure that Mr Hughes would have survived.’
The Crown had to make the jury sure that at the time when LF’s condition was such that there was a serious and obvious risk of death, CB was grossly negligent in failing to obtain medical assistance and that such assistance would have saved her life.
It was not enough that she was having a bad trip, or that when the time came when medical help was needed, it still would not have been sufficient to save her life. The court stressed that in cases involving health professionals, the focus must be on when the condition of the deceased reached the threshold of serious and obvious risk of death, what the accused should have done then and the prospects of survival at that point.
Fixing a time when LF’s condition posed an obvious and serious risk of death was something the Crown could not do but instead was something which the jury were left to grapple with. Had they been able to do so, they would still have had to show that at that point, CB failed to try to seek medical help, taking account of the time needed for medical assistance to reach LF, which is when the question of whether at that point, she would have survived, becomes one of vital importance.
CB made a number of attempts to get assistance between 19:13 and 20:29, and clearly it could not be alleged that his actions amounted to gross negligence at a time when he was trying to secure medical attention for her. That was why 21:10 became of crucial importance.
However, a 90% chance of survival at 21:10, had medical attention been available inevitably meant that there was a realistic possibility that she would have lived.
The Court, therefore, held that this was one of those rare cases where the expert evidence was all that the jury had to assist them in answering the question on causation. Furthermore, that evidence was not capable of establishing causation to the criminal standard. Putting it another way, Professor Deakin’s 90% chance of survival at 21:10, considered in terms of an operation that carried a 10% risk of mortality, might enable both patient and clinician to confidently state the chances of survival to be high or very good, but not one of them could be sure that would be the case.
When set out in those terms, the conclusion of the Court is not only logical but inevitable. The evidence at trial, particularly the video evidence, was very emotive and that, together with CB’s lies and his insistence on remaining where they were in the wood rather than walking the 400m to the medical tent, appears to have wrongly tilted the balance. The judge, answering the half-time submission said that LF had a very good chance of surviving if she had received medical help before she became unresponsive and that the breach of duty was for the jury to decide.
That was putting the cart before the horse and one where the judge’s own choice of words; a very good chance, should have signalled how far away the prosecution were from satisfying the standard of proof required.
