case example
Charge: Constructive manslaughter
Case progression: Court-Martial – Guilty
Courts-Martial Appeal Court – Conviction upheld
Point of law: Medical treatment breaking the chain of causation
In R v Smith [1959] 2 QB 35, the defendant stabbed the victim, a fellow soldier from a different regiment, with a bayonet during a fight. Upon transporting the victim to the medical centre, several other soldiers dropped the victim twice. An overworked doctor failed to notice that one of the victim’s lungs had been punctured. The treatment was described by the Courts-Martial Appeal Court as ‘thoroughly bad’ and such that it ‘might well have affected his chances of recovery’.
The defendant was convicted of constructive manslaughter in the Court-Martial and his conviction was upheld on appeal in the Courts-Martial Appeal Court, which ruled that the defendant remained the ‘substantial and operating’ cause of death despite the poor treatment from the doctor.
You may well wonder why Smith did not follow the decision in Jordan. According to the Courts-Martial Appeal Court, the decision in Smith could be distinguished from Jordan in that the wounds inflicted by Smith had not healed and remained the cause of death. Whereas in Jordan, the wounds had virtually healed and it could not be said that the defendant remained the ‘substantial and operating’ cause. In the end, the Courts-Martial Appeal Court in Smith declared that Jordan was a ‘very particular case depending upon its exact facts’. Indeed, this was the opinion of the Court of Appeal in R v Blaue [1975] 1 WLR 1411 where Lawton LJ explained that Jordan was ‘probably rightly decided on its facts’ but that it should ‘be regarded as a case decided on its own special facts and not as an authority relaxing the common law approach to causation’.
The ratio of the decision in Smith is as follows (per Lord Parker CJ):
[I]f at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. (emphasis added)
The most authoritative decision in this area of law now is that of R v Cheshire.
case example
Charge: Murder
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Medical treatment breaking the chain of causation
In R v Cheshire [1991] 3 All ER 670, the defendant shot the victim in the leg and stomach during an argument. The victim was taken to hospital and placed in intensive care, where a tracheotomy tube was inserted into his windpipe as a result of breathing difficulties. The victim died two months after the shooting as a result of complications in the tracheotomy procedure.
The defendant was convicted in the Crown Court and his conviction upheld in the Court of Appeal despite the fact that the gunshot wounds had healed at the time of death and the medical treatment was the ‘immediate’ cause of death. The Court of Appeal ruled that the complications were a ‘natural consequence’ of the defendant’s actions and the chain of causation was not broken. The defendant remained the ‘operating and substantial’ cause of death.
Beldam LJ concluded:
… when the victim of a criminal act is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as a cause of the victim’s death to the exclusion of the accused’s acts …
Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.
From the above authorities, it is clear that the chain of causation is unlikely to be broken in circumstances involving poor medical treatment. The decision in Cheshire has been criticised as illogical and policy-driven, given that act of the defendant was not the ‘immediate’ cause of death but, rather, the medical intervention was. As Jefferson (Criminal Law, 12th edn (Pearson, 2015)) makes clear, the defendant was held to have ‘significantly contributed’ to the death despite the fact that the victim was shot in the leg and chest, but died as a result of the narrowing of his throat. Despite these criticisms, the decision of Cheshire has subsequently been followed in such cases as R v McKechnie (1991) 94 Cr App R 51 and R v Mellor [1996] 2 Cr App R 245.
in practice
Think about the justification for the decision in Cheshire practically. The courts do not wish to accept an argument from an accused that, as a result of poor medical treatment, he is not liable for the act that necessitated the medical intervention in the first place. Indeed, the meaning of ‘so independent’ and ‘so potent’ remains unclear, granting the courts a wide amount of discretion to deal with cases on a fact-by-fact basis. Jefferson (Criminal Law, 15th edn (Pearson, 2015)) argues that the ruling ‘would seem to be one which protects medical staff from the consequences of their carelessness’; others such as Stannard (‘Criminal Causation and the Careless Doctor’ (1992) 55(4) MLR 577) argue, however, that medical treatment cannot be regarded as ‘abnormal’ given the pressures placed on emergency units.
Whatever the argument, one cannot deny that policy had a great impact upon this decision and demonstrates, as Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) argue, that the ‘status of the third party’ may well affect whether the chain of causation is broken (as also seen in Pagett above).
The statement of law is now clear: Although a break in the chain of causation is possible, following Jordan, medical intervention is unlikely to break the chain and, following Cheshire, will only do so where the intervention is ‘so independent … and in itself so potent in causing death, that [the jury] regard the contribution made by [the defendant’s] acts as insignificant’.
As a final note, according to the Court of Appeal in R v Suratan [2004] EWCA Crim 1246, juries require careful guidance on the issues before them, especially when they are required to decide the cause of death and whether medical treatment was so ‘palpably wrong’ that the defendant is no longer the substantial and operating cause of death. See also R v Dear [1996] Crim LR 595 and McKechnie. Be aware, however, as with all expert evidence, the jury are entitled to ignore it (R v Stockwell (1993) 97 Cr App R 260).
in practice
Do not confuse the effects that Smith and Cheshire had on the decision in Jordan. Jordan remains
