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8.5.2.2 Elements of Gross Negligence Manslaughter

In R v Broughton [2020] EWCA Crim 1093, the appellant appealed to the Court of Appeal against his conviction for gross negligence manslaughter. His appeal centred around the necessary proof required for causation in gross negligence manslaughter. 

In summary, the appellant had supplied his girlfriend, the victim, with Class A drugs at a music festival. The victim experienced a bad reaction to the drugs – the evidence demonstrated that the appellant has ‘bumped up’ the drugs. The case for the prosecution at trial was that the appellant had supplied the drugs to the victim and had remained with her throughout. As a result of this, the appellant owed a duty of care to seek and secure medical assistance for the victim; his failure to do so amounted to a breach of that duty and was a substantial cause of her death. The expert witness at trial testified that the victim was ‘seriously unwell and in need of urgent medical care’ and she stood a 90% chance of survival with medical intervention. On this evidence, the defence made a submission of no case to answer on the basis that the evidence, taken at its highest, could not establish causation to the criminal standard. The judge rejected this submission and the defendant was convicted before a jury. 

On appeal, the appellant contended that the trial judge had used the wrong test to establish whether causation was satisfied to the criminal standard and, in any event, there was insufficient evidence to meet that standard. In particular, according to the appellant, the prosecution had to prove, beyond reasonable doubt, that the victim would have lived (ie the medical intervention would have saved her life). 

The appeal against conviction was upheld. The Court of Appeal, led by Lord Burnett CJ, confirmed the correct test to be that there was a serious and obvious risk of death and that medical assistance would have saved the victim’s life. More specifically, the prosecution had to establish the specific point in time when the victim’s condition reached the threshold of involving a serious and obvious risk of death and the prospects of survival at that point. The prosecution had not fixed on a time at which it was contended that the deceased’s condition posed an obvious and serious risk of death. Given the 90% chance of survival, according to the expert witness, the prosecution were unable to prove that there remained a serious and obvious risk of death at the time the victim’s condition deteriorated. As such, the conviction was unsafe and quashed. 

Comment:

Broughton is an important judgment in three respects:

First, it confirms that the test to be applied in causation cases is whether the victim would have lived with timely medical assistance. At trial, the prosecution had submitted that it was sufficient to prove that the victim was deprived of a ‘significant and substantial chance of survival’. This was not enough, according to the Court of Appeal. The question to ask is whether the medical assistance would have saved her life. 

Second, Broughton confirms the approach adopted in the earlier case of Gian v Crown Prosecution Service [2009] EWCA Crim 2553 that ‘in many homicide cases, determining the cause or causes of death did not rely exclusively on expert opinion but could be collected from surrounding circumstances’ (per Lord Burnett CJ in Broughton at [98]). This simply means that juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. 

Finally, it provides a relatively clear statement as to the standard that must be met by the prosecution in terms of proof of causation. The prosecution must establish a point in time when they allege the serious and obvious risk of death arose, that there was a realistic chance of survival with medical treatment at that time, and that the defendant failed reasonably to secure medical treatment at that time. The prosecution’s inability to do so meant that causation, to the criminal standard, was not proven. 

9.2.4 Charging common assault

In DPP v Jones [2020] EWHC 859 (Admin), the DPP appealed to the Divisional Court by way of case stated against a decision of the magistrates’ court to refuse permission to amend two charges alleging common assault to add the words, ‘by beating’.

In summary, the defendant, a serving prisoner, was charged with ‘assault’, the allegation being that he spat on a number of prison officers. The prosecution attempted to amend the charge to ‘assault by beating’ to reflect the nature of the allegation. The magistrates’ court refused this application on account that the amendment was sought out of time (the time limit being 6 months – 1980, s 127). 

In the Divisional Court, Stuart-Smith J referred to the authority of R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] EWHC 228 (Admin), in which Dyson J identified that a charge (or more accurately in the magistrates’ court, an ‘information’) can be amended out of time so long as ‘(i) the different offence or offences allege the “same misdoing” as the original offence; and (ii) the amendment can be made in the interests of justice.’ The ‘same misdoing’ was defined by Dyson J as where ‘the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence’. 

The focus for Stuart-Smith J in Jones, therefore, was whether ‘assault by beating’ arose from the same facts as a charge of ‘assault’. At [21], Stuart-Smith J explained that:

it is plain beyond argument that the original offences were based upon allegations that the defendant spat at the two officers and that his spittle landed on them. No one was in any doubt about that, least of all the defendant, because his defence statement addressed these allegations head on as the central substance of the case against him. His defence was that he did not spit at the officers at any time.

His Lordship continued at [23]:

Leaving aside the technically correct observation that an offence of spitting so that the spittle lands should be charged as an assault by battery, there was never any doubt in anybody’s minds that the original offences arose out of allegations that the defendant spat at the officers; so, too, do the new offences.

As a result, the Divisional Court concluded that the amendment to the information should have been permitted and the case proceed on the basis of ‘assault by beating’. 

Comment

This is a particularly interesting decision which plays an important part in our understanding of the phrase ‘assault’. In many circumstances, ‘assault’ is a generic term covering both assault by apprehension, and battery. Indeed, in the case of R (Ward) v Black Country Magistrates’ Court [2020] EWHC 680 (Admin) (a judgment handed down seven days after that of Jones), Hickinbottom LJ concluded that the ‘general description [ie “common assault”] would have incorporated the more specific “battery” or “assault by beating”’. As such, it is questionable whether it was actually necessary to amend the charge at all in Jones. So long as the case proceeded on account of a battery (ie that there was an actual infliction of unlawful force), then the use of the terms ‘assault’, ‘common assault’, or ‘battery’ may be of less importance. This is certainly evident from the case of R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin) where the defendant was charged with and convicted of battery, but that finding was made on account that the defendant had threatened the victim, not that he had struck the victim. Had the defendant in Kracher been charged with ‘assault’ or ‘common assault’, it is possible that his conviction would have stood.

In summary, Jones is a useful authority to identify the difficulty associated with the use of the phrase ‘assault’ without further precision. Whilst the charge was properly amended, it is questionable whether such amendment was necessary if, following Ward, the case was proceeded, both factually and in the decision reached, on account of a battery. 

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