successfully appealed to the Court of Appeal on the basis that the trial judge erred in his reading of Girdler. The Court of Appeal agreed, with Simon LJ ruling that:
What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the respondent’s parked car. It would not be necessary for the jury to be sure that the particular circumstances of the collision or ‘the exact form’ of the subsequent act was reasonably foreseeable.
It follows that, in our view, the Judge adopted too confined an interpretation of the Girdler formulation, and as a consequence he erred in his conclusion that there was no case to answer.
If a driver leaves a car, on the hard shoulder of a motorway for 15 minutes at 4.30 am on a November morning, without displaying any lights, a jury could properly conclude that some form of collision could occur, and that, if it were occupied, death or serious injury could be caused. (emphasis added)
Following R v A, therefore, the precise details or ‘exact form’ of the subsequent third party action need not be reasonably foreseeable; it is merely the case that some sort of third party intervention would be foreseeable. See also R v Wallace (Berlinah) [2018] EWCA Crim 690 and the Canadian authority of R v Maybin [2012] 2 SCR 30 (both of which were relied upon by Simon LJ).
(ii) Medical intervention cases
Foreseeably, as you can expect, a victim who has suffered at the hands of the defendant is likely to require medical assistance. What may also be foreseeable, however, is that such assistance may be negligently given with potential misdiagnosis, poorly executed procedure or maltreatment. It can be made clear at the start that a failure to provide proper treatment for an initial injury seldom amounts to an independent cause of death or injury. Indeed, Beldam LJ in R v Cheshire [1991] 3 All ER 670 said that it is only 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. (emphasis added)
According to the editors of Blackstone’s Criminal Practice (OUP, 2020), ‘it is far more likely that such failure will merely aggravate the original injury, or that it will allow the original injury to take its natural course’.
Despite this clear statement, it remains essential to observe how the law in this area has developed and apply that to the test of ‘operating and substantial’ cause. We begin our discussion with a consideration of the case of R v Jordan (1956) 40 Cr App R 152.
case example
Charge: Murder
Case progression: Crown Court – Guilty
Court of Criminal Appeal – Conviction quashed
Point of law: Medical treatment breaking the chain of causation
In R v Jordan (1956) 40 Cr App R 152, the defendant stabbed the victim who was taken to hospital. During treatment at the hospital, the doctor administered a drug to which the victim was allergic. The victim died as a result of an allergic reaction to the drug. In the Crown Court, the defendant was convicted; however, on appeal, the Court of Criminal Appeal quashed his conviction, ruling that the doctor had broken the chain of causation.Two key submissions were presented on appeal:
• The original wound had largely healed at the time of death.
• The doctor should have known that the victim was intolerant to the drug.
The Court ruled that the doctor’s treatment was ‘palpably wrong’ and thus broke the chain of causation as the defendant was no longer the ‘substantial and operative’ cause of death.
The decision of Jordan has been significantly narrowed by the subsequent decisions in R v Smith [1959] 2 QB 35 and R v Cheshire [1991] 3 All ER 670.
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:
…