R v Broughton [2020] EWCA Crim 1093; [2021] 1 WLR 543

Ceon Broughton supplied his girlfriend Louella Fletcher Michie with a Class A drug at a festival and failed to obtain medical help as she deteriorated. His manslaughter conviction was quashed because the prosecution's expert evidence could not prove causation to the criminal standard.

Facts

The appellant, Ceon Broughton, attended the Bestival Music Festival with his girlfriend, Louella Fletcher Michie. On 10 September 2017, he supplied her with the Class A drug 2C-P, which he had ‘bumped up’ either by increasing the dose or mixing it with ecstasy or ketamine. The couple went into woodland just outside the festival site, where Louella began a bad trip. Over several hours her condition deteriorated markedly. The appellant filmed her, exchanged messages with her family (who repeatedly urged him to seek medical help), and made some attempts to obtain assistance via a friend, Ezra Campbell, but did not himself call 999 or take her to the medical tent, which was around 400 metres away. Louella was pronounced dead at 01.10 on 11 September 2017.

The appellant was convicted at Winchester Crown Court of gross negligence manslaughter and of supplying 2C-P. He was sentenced to a total of eight and a half years’ imprisonment.

Issues

The principal issue on appeal was whether the prosecution had adduced evidence from which a jury could be sure that the appellant’s grossly negligent failure to obtain medical assistance was a cause of Louella’s death. This required the Court of Appeal to clarify the correct test for causation in gross negligence manslaughter, particularly where the alleged negligence consisted of an omission to obtain medical treatment. Two renewed grounds concerned whether the judge misdirected the jury on causation and whether a duty of care arose.

The Six Elements of Gross Negligence Manslaughter

The Court reiterated the six elements to be proved, drawn from R v Adomako [1995] 1 AC 171 and subsequent authorities: (i) an existing duty of care; (ii) negligent breach of that duty; (iii) a serious and obvious risk of death at the time of the breach; (iv) reasonable foreseeability of that risk; (v) the breach caused or made a significant (more than minimal) contribution to death; and (vi) the breach was truly exceptionally bad, justifying criminal sanction.

Arguments

The Appellant

Mr Kamlish QC argued that the prosecution had to prove to the criminal standard that timely medical intervention would have saved Louella’s life. The only expert who addressed causation, Professor Deakin, had gone no further than saying there was, at best, a 90% chance of survival at 21.10 if medical help had been provided, and had expressly disavowed the proposition that causation could be proved to the criminal standard. Given the paucity of scientific knowledge about 2C-P and the presence of concurrent drugs, the jury could not properly be sure that medical intervention would have saved her.

The Respondent

Miss Darlow QC contended, for the first time on appeal, that it was sufficient to prove that the appellant’s negligence had deprived Louella of a significant or substantial chance of survival. She relied on R v Sellu [2016] EWCA Crim 1716 and R v Misra [2004] EWCA Crim 2375, submitting that requiring proof of certainty of survival would render many prosecutions impossible. She also argued that the totality of the expert evidence, combined with the jury’s ability to make its own judgment, sufficed.

Judgment

The Court of Appeal (Lord Burnett CJ, Sweeney and Murray JJ) allowed the appeal against the manslaughter conviction.

The Correct Test for Causation

The Court rejected the Crown’s submission that it was enough to prove the deprivation of a significant chance of survival. Relying on R v Morby (1882) 8 QBD 571, the Court held that where death is alleged to have resulted from failure to obtain (or provide) medical treatment, the prosecution must prove to the criminal standard that the deceased would have lived – that is, that life would have been significantly prolonged – had the appropriate action been taken. The Court held that Sellu was not authority for a lower test; the passage relied upon by the Crown had to be read in context of the way that case was argued.

The Court accepted that being ‘sure’ is not equivalent to scientific certainty (citing R v Gian [2009] EWCA Crim 2553): the jury must exclude realistic or plausible possibilities that the deceased would have died anyway, but not fanciful or hypothetical ones.

Application to the Facts

Only Professor Deakin gave evidence going to causation. His evidence was that there had been no previously documented deaths from 2C-P and that the mechanism of Louella’s death was unknown. He was unable to say beyond reasonable doubt that earlier medical intervention would have saved her life, though he considered on the balance of probabilities that intervention before 21.10 was likely to have done so, putting the chance at around 90%. The two peer-reviewed papers (concerning six patients) and the US newspaper report unearthed by Dr Morley added nothing capable of proving causation to the criminal standard; Dr Morley rightly disavowed the newspaper report.

The Court held that even Professor Deakin’s most favourable estimate – a 90% chance of survival at 21.10 – left a realistic possibility that Louella would have died in any event. That was insufficient for the criminal standard. As the Court observed, if an operation carried a 10% mortality risk, one could say survival chances were very high, but not that survival was sure.

Withdrawal from the Jury

Applying the test in R v Galbraith [1981] 1 WLR 1039, and in respectful disagreement with the trial judge, the Court concluded that the evidence, taken at its highest, was incapable of proving causation to the criminal standard. The submission of no case to answer should have been upheld. The conviction for manslaughter was quashed.

Implications

The judgment clarifies and reaffirms the causation test in gross negligence manslaughter where the alleged negligence is an omission to obtain or provide medical treatment. The prosecution must prove to the criminal standard that timely intervention would have saved (or significantly prolonged) the life of the deceased. The ‘loss of a significant chance of survival’ formulation, drawn from civil law reasoning, is not sufficient in a criminal prosecution.

The decision draws a careful distinction between scientific certainty and legal certainty: the jury need not achieve mathematical proof, but must be sure to the criminal standard, excluding realistic possibilities that death would have supervened anyway. Hypothetical or fanciful possibilities may be discounted.

The judgment is significant for prosecutors, defence practitioners, and expert witnesses in medical and drug-related manslaughter cases. It emphasises that where the only evidence on causation comes from expert opinion, that evidence must be capable of supporting a conclusion to the criminal standard; the jury cannot manufacture certainty which the expert is unable to provide. It also underscores the necessity of identifying with precision the moment at which the deceased’s condition presented a serious and obvious risk of death, and evaluating causation from that point, allowing for the natural delays in obtaining help.

The Court expressly limited its ruling: Misra remains good law and turned on its distinctive expert evidence, which included statements approaching certainty of survival. Broughton should not be read as suggesting that causation is never for the jury; rather, it reiterates that no issue may be left to a jury unless there is sufficient evidence upon which it can be sure.

Verdict: Appeal against conviction for manslaughter allowed; the manslaughter conviction was quashed on the ground that the prosecution’s evidence, taken at its highest, was incapable of proving causation to the criminal standard, and the trial judge should have acceded to the submission of no case to answer.

Source: R v Broughton [2020] EWCA Crim 1093; [2021] 1 WLR 543