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*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his direction had virtually withdrawn from them the issue of medical negligence as the cause of death, since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.

, 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.

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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
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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
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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
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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
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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 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
wound 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.”

Both these cases were considered by this court in the cases of Malcherek and Steel (1981) 73 Cr.App.R. 173,
[1981] 1 W.L.R. 690 , in which it had been argued that the act of a doctor in disconnecting a life support
machine had intervened to cause the death of the victim to the exclusion of injuries inflicted by the appellants.
In rejecting this submission Lord Lane C.J., after considering Jordan ( supra ) and Smith ( supra ), said at p. 181
and p. 696D:
“In the view of this Court, if a choice has to be made between the decision in Jordan ( supra )
and that in Smith ) ( supra ) which we do not believe it does ( Jordan being a very exceptional
case), then the decision in Smith is to be preferred.”

Later in the same judgment Lord Lane C.J. said ( ibid. ) and p. 696F):
“There may be occasions, although they will be rare, when the original injury has ceased to
operate as a cause at all, but in the ordinary case if the treatment is given bona fide by
competent and careful medical practitioners, then evidence will not be admissible to show that
the treatment would not have been administered in the same way by other medical pra
ctitioners. In other words, the fact that the victim has died, despite or because of medical
treatment for the initial injury given by careful and skilled medical practitioners, will not
exonerate the original assailant from responsibility for the death.”

*257
In those two cases it was not suggested that the actions of the doctors in disconnecting the life support
machine were other than competent and careful. The court did not have to consider the effect of medical
treatment which fell short of the standard of care to be expected of competent medical practitioners.
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A case in which the facts bear a close similarity to the case with which we are concerned is the case of Evans
and Gardiner (No. 2) [1976] V.R. 523 . In that case the deceased was stabbed in the stomach by the two
applicants in April 1974. After operation the victim resumed an apparently healthy life but nearly a year later,
after suffering abdominal pain and vomiting and undergoing further medical treatment, he died. The cause of
death was a stricture of the small bowel, a not uncommon sequel to the operation carried out to deal with the
stab wound inflicted by the applicants. It was contended that the doctors treating the victim for the later
symptoms ought to have diagnosed the presence of the stricture, that they had been negligent not to do so
and that timely operative treatment would have saved the victim's life.

The Supreme Court of Victoria held that the test to be applied in determining whether a felonious act has
caused a death which follows, in spite of an intervening act, is whether the felonious act is still an operating
and substantial cause of the death.
The summing-up to the jury had been based on the passage already quoted from Lord Parker's judgment in
Smith ( supra ) and the Supreme Court endorsed a direction in those terms. It commented upon the limitations
of the decision of Jordan ( supra ) and made observations on the difference between the failure to diagnose
the consequence of the original injury and cases in which medical treatment has been given which has a
positive adverse effect on the victim. It concluded at p. 528:
“But in the long run the difference between a positive act of commission and an omission to do
some particular act is for these purposes ultimately a question of degree. As an event
intervening between an act alleged to be felonious and to have resulted in death, and the
actual death, a positive act of commission or an act of omission will serve to break the chain of
causation only if it can be shown that the act or omission accelerated the death, so that it can
be said to have caused the death and thus to have prevented the felonious act which would
have caused death from actually doing so.”

Later in the judgment the court said at p. 534:

“In these circumstances we agree with the view of the learned trial judge expressed in his
report to this court that there was a case to go to the jury. The failure of the medical
practitioners to diagnose correctly the victim's condition, however inept or unskilful, was not
the cause of death. It was the blockage of the bowel which caused death and the real question
for the jury was whether that blockage was due to the stabbing. There was plenty of medical
evidence to support such a finding, if the jury chose to accept it.”

It seems to us that these two passages demonstrate the difficulties in formulating and explaining a general
concept of causation but what we think does emerge from this and the other cases is that when the victim of a
criminal attack 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 the cause of the victim's death to
the exclusion of the accused's acts.

Where the law requires proof of the relationship between an act and its consequences as an element of
responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously
elusive.

In a case in which the jury have to consider whether negligence in the treatment *258 of injuries inflicted by
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the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be
satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding
that the accused's acts need not be the sole cause or even the main cause of death it being sufficient that his
acts contributed significantly to that result. 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.

It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they
are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's
death. We think the word “significant” conveys the necessary substance of a contribution made to the death
which is more than negligible. In the present case the passage in the summing-up complained of has to be set
in the context of the remainder of the direction given by the learned judge on the issue of causation. He
directed the jury that they had to decide whether the two bullets fired into the deceased on December 10
caused his death on February 15 following. Or, he said, put in another way, did the injuries caused cease to
operate as a cause of death because something else intervened? He told them that the prosecution did not
have to prove that the bullets were the only cause of death but they had to prove that they were one
operative and substantial cause of death. He was thus following the words used in Smith ( supra ). The judge
then gave several examples for the jury to consider before reverting to a paraphrase of the alternative
formulation used by Lord Parker C.J. in Smith . Finally, he reminded the jury of the evidence which they had
heard on this issue. We would remark that on several occasions during this evidence the jury had passed notes
to the judge asking for clarification of expressions used by the medical witnesses which showed that they were
following closely the factual issues they had to consider. If the passage to which exception has been taken had
not been included, no possible criticism could have been levelled at the summing-up. Although for reasons we
have stated we think that the judge erred when he invited the jury to consider the degree of fault in the
medical treatment rather than its consequences, we consider that no miscarriage of justice has actually
occurred. Even if more experienced doctors than those who attended the deceased would have recognised
the rare complication in time to have prevented the deceased's death, that complication was a direct
consequence of the appellant's acts which remained a significant cause of his death. We cannot conceive that,
on the evidence given, any jury would have found otherwise. Accordingly, we dismiss the appeal.

Representation
Solicitors: Crown Prosecution Service, Central Courts .

Appeal dismissed.

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