R v Wallace [2018] EWCA Crim 690

Berlinah Wallace threw sulphuric acid over her former partner, causing catastrophic, permanent injuries. He later underwent lawful euthanasia in Belgium. The trial judge withdrew the murder charge, holding causation was broken. The Court of Appeal held the jury could find her acts significantly caused his death and ordered a retrial.

Facts

Berlinah Wallace and Mark van Dongen had been in a relationship and lived together in Bristol. After the relationship broke down in August 2015, Mr van Dongen moved out and began seeing another woman. The respondent was distressed by this and, on 2 September 2015, she purchased a one‑litre bottle of sulphuric acid online. The bottle bore clear warnings and was stored in her kitchen. The prosecution alleged that she carried out internet searches about sulphuric acid, its lethality and the disfiguring effects of acid attacks.

On 22 September 2015, at the respondent’s request, Mr van Dongen went to her flat. The prosecution case was that an argument followed, the respondent said she was going to a hotel, and he stayed overnight. At about 3 a.m., while he was asleep in bed wearing only boxer shorts, she returned, poured sulphuric acid into a glass, went into the bedroom, woke him and, laughing, said:

“If I can’t have you, no-one else will”

She then threw the acid into his face. The acid covered his face and upper body and dripped onto his lower body as he moved.

Mr van Dongen ran into the street screaming. Members of the public assisted him until emergency services arrived. At Southmead Hospital, a burns specialist recorded that as he saw his outline in a mirror, he screamed:

“Kill me now, if my face is going to be left looking like this, I don’t want to live”

He sustained catastrophic, life‑changing injuries: full thickness burns to 25% of his body (with grafting over 40% of body surface), grotesque scarring of face, chest and arms, loss of sight in one eye and most sight in the other, amputation of a lower leg, critical illness neuropathy leaving him permanently paralysed from the neck down, and repeated infections requiring intensive treatment. He was in a coma for four months and in hospital for about fourteen months. He could not feed or wash himself, required extensive support, and suffered constant, unbearable physical and psychological pain.

After discharge to a care home in November 2016, the arrangements broke down almost immediately. His father took him from England to St Maria Hospital in Overpelt, Belgium, on 23 November 2016. Belgium permits euthanasia under the Belgian Act on Euthanasia 2002, if statutory criteria are satisfied.

While in Belgium, Mr van Dongen was seen by many doctors, including neurologists and psychiatrists. He was told his paralysis, particularly of the arms, was permanent, which his father described as:

“the straw that breaks the camel’s back”

He applied for euthanasia around 1 December 2016. The Belgian Act requires, in cases where death is not expected in the near future, at least a 30‑day interval between the written request and euthanasia, and confirmation by physicians that the patient is in a medically futile condition of constant and unbearable suffering that cannot be alleviated.

It was an agreed fact at trial that the legal requirements of the Belgian Act were satisfied. A Belgian doctor confirmed that:

“Active euthanasia was applied to Mark van Dongen due to unbearable physical and psychological suffering under maximal medicinal support and this was done following the legal framework [under the Belgian 2002 Act].”

During his final weeks, he developed a lung infection. Belgian medical staff advised that intubation was required to avoid the risk of choking but warned there was a high risk (said to be 96%) of permanent loss of his voice. He refused intubation, wishing to be able to speak to his father “until the very last second”, and expressed that he had suffered enough and wanted no more pain or surgery. His father’s evidence was that his son was fully conscious and able to converse.

On 2 January 2017, Belgian doctors lawfully administered euthanasia by injecting drugs via a catheter into his heart, causing his immediate death.

The respondent had been arrested shortly after the attack. She accepted throwing the contents of the glass but claimed she believed it contained water and said she had bought the acid because of a smell from the drains. She had removed the label from the acid bottle and offered no explanation for doing so.

Issues

1. Causation and the murder charge

After Mr van Dongen’s death, the respondent was charged with murder (count 1) and with applying a corrosive substance with intent under section 29 of the Offences against the Person Act 1861 (count 2). On an earlier application to dismiss, Sir John Royce had held that causation could properly be left to the jury. He reasoned that the defendant’s acts could be a substantial cause of death despite the subsequent euthanasia, drawing an analogy with a victim who jumps from a cliff to escape intolerable pain. He concluded:

“The jury would be entitled to say that Mr van Dongen’s medically futile condition was constant and unbearable. In those circumstances, the jury could conclude his decision to undergo euthanasia did not break the chain of causation. They might even be entitled to say the defendant’s act was the main or principal cause of death. They would certainly, in my judgment, be entitled to say it was a least a substantial cause…”

At trial before May J, following the close of the prosecution case, the defence submitted there was no case to answer on the murder count because legal causation was not established. They accepted factual or “but for” causation, and accepted that refusal of treatment or suicide by the victim’s own hand might not break causation. However, they argued that the combination of Mr van Dongen’s voluntary decision to die and the Belgian doctors’ act of administering a lethal injection constituted a novus actus interveniens, breaking the causal chain as a matter of law. They emphasised that, had equivalent conduct occurred in England, the doctor would have been guilty of murder, which they said must constitute an independent act.

The prosecution submitted that the correct criminal law question was whether the respondent’s act remained a substantial and operating cause of death. The victim’s application for euthanasia and the doctors’ actions were facts for the jury to consider in assessing causation; they did not automatically sever it.

2. Two evidential rulings

Two evidential rulings were also challenged, though the prosecution accepted they did not affect the causation ruling:

• Admission of hearsay evidence from Mr van Dongen’s father about what Belgian medical staff told his son regarding prognosis and survivability without intubation.
• Admission of expert psychiatric opinion from a consultant forensic psychiatrist, Dr Jayawickrama, who had not examined the deceased but proposed that his symptoms were consistent with post‑traumatic stress disorder or depression, based on partial UK records and lay evidence, with no Belgian psychiatric records.

Judgment

A. Evidential rulings

1. Hearsay about prognosis and survivable time

May J admitted hearsay from the father insofar as it went to the deceased’s state of mind: that he had a chest infection; was told he needed a tube and might die without it; did not want a tube because of the risk to his voice; and felt he had suffered enough. She excluded more specific statements about how long he might survive without intubation. She concluded that the jury would inevitably conflate the fact of such medical statements with their truth, particularly given the emotional nature of the evidence and the absence of medical records from Belgium which could test it.

The Court of Appeal upheld that decision. It held there was no sound basis for interfering. The judge had, in a careful and balanced way, allowed sufficient evidence for the jury to assess the victim’s beliefs and state of mind while properly guarding against unfair prejudice and confusion about untestable medical opinion.

2. Exclusion of psychiatric expert opinion

Dr Jayawickrama’s report was based on UK hospital notes up to July 2016, mental‑health liaison entries, prescriptions, and lay descriptions of symptoms such as flashbacks and nightmares. He had not examined the deceased and only said the symptoms “could be consistent” with a diagnosis of PTSD; he could not himself make a firm diagnosis. There were no Belgian psychiatric records available.

May J noted that the report was “hedged about with caveats and qualifications” and that any weight would necessarily be “very slight”. She was particularly concerned that admitting it in the complete absence of material from the Belgian psychiatrists who had examined the deceased shortly before his death would be unfair. Applying section 78 of the Police and Criminal Evidence Act 1984, she declined to admit the evidence.

The Court of Appeal agreed. It found no error in exercising the discretion to exclude the evidence, concluding that the judge was entitled to regard its admission as risking confusion and unfairness, given its limited foundation and the lack of Belgian psychiatric material.

B. Submission of no case to answer on murder

1. The trial judge’s reasoning

May J accepted that the respondent’s actions were the factual or “but for” cause of death, but concluded that legal causation had been broken. She placed weight on the fact that the euthanasia was performed by doctors acting independently, at some temporal distance from the attack, and that, if performed in England, it would have amounted to murder. She noted that Mr van Dongen was in a survivable condition at the time of euthanasia, albeit with a very poor quality of life, and that the doctors were under no legal duty in Belgium to assist him to die.

Emphasising respect for individual autonomy, she considered that the victim’s and doctors’ voluntary and informed acts must “disconnect” the death from the earlier attack. She stated:

“It seems to me that if one is to accord proper respect to the decision and actions of persons with free will acting autonomously (whether as a victim or third-party intervener) then the legal result of their free and voluntary choice and/or positive act to end their own or another’s life must as I see it be to break with what had gone before, disconnecting both the choice to die and the death itself from the circumstances generating the occasion for it. When Mark van Dongen made the brave, desperate, profoundly sad decision that his life with such appalling disability was so burdensome that he preferred to leave it, and when the doctors opened the door for him to go and ushered him through, his choice and their actions each disconnected his death, in law, from the culpable activity which had caused his dreadful injuries. In my view, a jury properly directed, could reach no other conclusion and for that reason I have decided that the case of murder must be withdrawn from them.”

She therefore upheld the submission of no case to answer on murder and withdrew count 1 from the jury.

2. The Court of Appeal’s analysis of causation

(a) General principles

The Court (Lady Justice Sharp, with Spencer J and Carr J) reviewed the law of causation in homicide, stressing the distinction between factual causation and legal causation, and the role of common sense and policy. It cited R v Hughes for the proposition that causation rules are context‑specific and that a cause need only be more than minimal or de minimis.

The Court endorsed the familiar test, derived from cases such as Smith, Cheshire and Dear, that the jury should ask whether the defendant’s conduct was an “operating” and “significant” cause of death, even if other causes also operated, and that causation is broken only if a later act is so independent and potent that the original act becomes “merely the setting” or “part of the history”.

It noted that causation must be approached with common sense, not philosophical analysis, and referred to the Canadian Supreme Court in R v Maybin for the idea that the focus is on whether the accused should be held morally and legally responsible, and that an intervening act reasonably foreseeable as a general type will not usually break the chain.

(b) Victim and third‑party interventions

The Court surveyed authority on victim responses (Roberts, Williams & Davis, Blaue) and third‑party acts (Pagett, medical negligence cases). It reaffirmed that:

• A defendant must generally “take the victim as he finds him”, including unusual religious beliefs or vulnerabilities (Blaue).
• The victim’s reaction to the defendant’s conduct will not break the chain unless it is so “daft” or disproportionate that no reasonable person could have foreseen it (Roberts, Williams & Davis).
• Acts done in reasonable self‑preservation or in performance of a legal duty (such as officers returning fire in Pagett) will not normally constitute a novus actus interveniens because they are not treated as independent voluntary acts in law.

The Court also addressed the principle, applied in cases such as Latif and Kennedy (No 2), that the free, deliberate and informed act of another adult may in some contexts break the chain. It distinguished those cases on the basis that they concerned truly free choices (for example, a drug user choosing to self‑inject) rather than choices made in response to extreme, continuing consequences of a defendant’s earlier criminal conduct.

(c) Application to euthanasia in this case

Turning to the present facts, the Court emphasised the direct, continuing link between the acid attack and the euthanasia. It highlighted that:

• The victim’s condition of “constant and unbearable” physical and psychological suffering, as certified under Belgian law, plainly resulted from the injuries inflicted by the respondent.
• But for those injuries, the victim would not have requested euthanasia and the doctors could not lawfully have provided it.
• There was no evidence of pre‑existing suicidal ideation or other conditions that might independently explain the decision; indeed, before his injuries he had been healthy, with “mental 100 per cent” according to his father.
• His physical state and suffering continued unabated up to his death; his situation could not realistically be equated with a victim whose wounds had healed and who then independently decided to die.

The Court observed that the victim’s “choice” was made in the context of extreme, unremitting pain, paralysis, disfigurement and loss of function. On that basis, it considered that the jury could regard his request for euthanasia and the doctors’ compliance as “a direct response to the inflicted injuries and to the circumstances created by them” rather than autonomous, independent events. It stated that the intervening acts were not “random extraneous events” or acts disconnected from the respondent’s wrongdoing.

The Court addressed the judge’s concern that euthanasia, if performed in England, would amount to murder. It stressed that the question before it was not the liability of the Belgian doctors but that of the respondent. The doctors acted lawfully in Belgium, in accordance with the statutory framework. The existence of a “conscience” clause allowing doctors to refuse euthanasia (Article 14 of the Belgian Act) did not compel a conclusion that their actions necessarily severed causation. By analogy with Pagett, an act done lawfully, and in response to a situation created by the defendant, need not be treated as a wholly independent, voluntary intervention.

The Court also considered foreseeability. While not a central plank of the arguments below, it noted that the jury could properly find that suicide or euthanasia was within the range of responses that might be expected from a victim in Mr van Dongen’s extreme situation. It observed that it would be an odd outcome if a defendant who paralysed one victim, leaving him physically unable to commit suicide unaided, escaped homicide liability, whereas they would be liable if another similarly injured victim could end their own life directly.

On the specific facts, the Court concluded that a properly directed jury could find:

• That the respondent’s attack remained an operating and significant cause of death.
• That the victim’s decision to request euthanasia and the doctors’ actions in carrying it out were so closely bound up with the consequences of the attack that they did not necessarily break the chain of causation.
• That there was “nothing that could decently be described as voluntary” in the victim’s suffering or his decision to die, in the sense relevant to the novus actus rule.

Accordingly, the Court held that it was wrong in law to withdraw the murder count from the jury. Causation was, on these facts, a live jury issue.

C. Outcome and suggested jury directions

The Court allowed the prosecution’s appeal against the terminating ruling on murder but dismissed the appeals against the two evidential rulings. It ordered a new trial on the murder count.

Recognising the difficulties in directing a jury on causation in such unusual circumstances, the Court suggested a possible structure for directions. It proposed that jurors should be asked:

• Whether they were sure the respondent deliberately threw acid over the victim.
• Whether they were sure she intended to kill or cause really serious bodily harm.
• Whether her act was a “significant and operating cause” of death, taking into account the injuries, the passage of time, intervening events, the role of the doctors and what the victim was told and said.
• If so, whether at the time of the attack it was reasonably foreseeable that, as a result of his injuries, the victim would commit suicide (including by voluntary euthanasia), and whether his decision fell within the range of responses which might be expected from a victim in his situation.

If the jury answered these questions in the prosecution’s favour, they could properly convict of murder; otherwise, an acquittal on that count would follow.

Implications

This decision clarifies that, in English criminal law, lawful euthanasia abroad does not, as a matter of law, automatically break the chain of causation between a defendant’s violent act and a victim’s death. Where a victim’s request for euthanasia and doctors’ actions are a direct and foreseeable response to extreme, ongoing suffering caused by the defendant, a jury may find that the original act remains an operating and significant cause of death.

The Court’s reasoning confirms the primacy of common sense, factual context and moral responsibility in assessing legal causation in homicide. It reinforces that:

• Causation is usually a question for the jury, applying the “operating and significant cause” test, and only in exceptional cases should it be withdrawn from them as a matter of law.
• Choices by victims or third parties made in the shadow of catastrophic injuries, and in circumstances created by the defendant, may not amount to the kind of free, deliberate and informed intervention that inevitably breaks causation.
• The law does not draw a rigid, determinative line between victim suicide and medically assisted death when both are a direct response to the defendant’s wrongdoing.

The case will be of particular importance in prosecutions involving catastrophic injuries that later lead to contentious end‑of‑life decisions, and it provides guidance on framing causation directions where euthanasia or other complex intervening acts arise.

Verdict: The Court of Appeal allowed the prosecution’s appeal against the terminating ruling that had withdrawn the murder charge from the jury, dismissed the prosecution’s appeals against the two evidential rulings, and ordered a new trial on the murder count.

Source: R v Wallace [2018] EWCA Crim 690