Broughton v R. (Rev 1)

In gross negligence manslaughter founded on a failure to obtain medical assistance, the prosecution must prove beyond reasonable doubt that the breach was a substantial contributory cause of death. It must therefore establish that timely treatment would have saved the deceased’s life, in the sense of significantly prolonging it. Depriving the deceased of a substantial chance of survival is insufficient.

The inquiry must focus on the point at which there was a serious and obvious risk of death, the action then required, and the realistic prospects of survival if that action had been taken. A jury may assess realistic rather than fanciful possibilities, but an issue must be withdrawn where the evidence is incapable of proving causation to the criminal standard.

The appellant supplied his girlfriend, Louella Fletcher Michie, with 2C-P at a music festival. She had also taken ketamine and MDMA. While she experienced a severe adverse reaction in nearby woodland, the appellant delayed obtaining effective medical assistance. She later died.

At Winchester Crown Court, before the Hon Mr Justice Goose, the appellant was convicted of manslaughter and drug-supply offences. He appealed his manslaughter conviction, principally on the basis that the prosecution evidence could not prove that his omission caused her death. The central issue was whether evidence of a very good, or 90%, prospect of survival with treatment could establish causation beyond reasonable doubt.

1. Appeal allowed. The prosecution evidence was incapable of proving causation to the criminal standard. The manslaughter case should have been withdrawn from the jury.

2. Gross negligence manslaughter requires, among other elements, a breach of an existing duty of care, a serious and obvious risk of death, and a breach which caused or made a significant contribution to death. In an omission case concerning medical assistance, it is not enough that the deceased was having a bad reaction or required medical attention. The relevant focus is the time when a serious and obvious risk of death arose, what the accused should then have done, and the prospects of survival once treatment could realistically have begun.

3. The court rejected the Crown’s proposed loss-of-chance test. The prosecution had to prove that timely medical intervention would have saved Louella’s life, meaning that her life would have been significantly prolonged. It also had to exclude realistic or plausible possibilities that she would have died despite treatment. R v Morby (1882) 8 QBD 571 remained authoritative on that requirement. R v Sellu [2016] EWCA Crim 1716 did not establish that a significant lost chance of survival sufficed.

4. The principle that a jury need not demand scientific certainty did not assist the prosecution. Unlike a case involving merely theoretical alternative causes, this case depended wholly on Professor Deakin’s expert evidence. His highest assessment was a 90% prospect of survival if medical assistance had been provided at 21.10. That left a realistic possibility of death despite treatment.

5. R v Misra [2004] EWCA Crim 2375 was distinguishable. It did not make causation invariably a question for the jury regardless of the sufficiency of the underlying evidence. Applying R v Galbraith [1981] 1 WLR 1039, the evidence could not sustain a finding that the appellant’s omission caused or significantly contributed to Louella’s death.

• Court of Appeal (Criminal Division): allowed the appeal against the manslaughter conviction: [2020] EWCA Crim 1093.
• Crown Court at Winchester: convicted the appellant of manslaughter and drug-supply offences on 28 February 2019. The manslaughter conviction was appealed.