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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:

… when the victim of a criminal act 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 a cause of the victim’s death to the exclusion of the accused’s acts …

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.

From the above authorities, it is clear that the chain of causation is unlikely to be broken in circumstances involving poor medical treatment. The decision in Cheshire has been criticised as illogical and policy-driven, given that act of the defendant was not the ‘immediate’ cause of death but, rather, the medical intervention was. As Jefferson (Criminal Law, 12th edn (Pearson, 2015)) makes clear, the defendant was held to have ‘significantly contributed’ to the death despite the fact that the victim was shot in the leg and chest, but died as a result of the narrowing of his throat. Despite these criticisms, the decision of Cheshire has subsequently been followed in such cases as R v McKechnie (1991) 94 Cr App R 51 and R v Mellor [1996] 2 Cr App R 245.

in practice

Think about the justification for the decision in Cheshire practically. The courts do not wish to accept an argument from an accused that, as a result of poor medical treatment, he is not liable for the act that necessitated the medical intervention in the first place. Indeed, the meaning of ‘so independent’ and ‘so potent’ remains unclear, granting the courts a wide amount of discretion to deal with cases on a fact-by-fact basis. Jefferson (Criminal Law, 15th edn (Pearson, 2015)) argues that the ruling ‘would seem to be one which protects medical staff from the consequences of their carelessness’; others such as Stannard (‘Criminal Causation and the Careless Doctor’ (1992) 55(4) MLR 577) argue, however, that medical treatment cannot be regarded as ‘abnormal’ given the pressures placed on emergency units.

Whatever the argument, one cannot deny that policy had a great impact upon this decision and demonstrates, as Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) argue, that the ‘status of the third party’ may well affect whether the chain of causation is broken (as also seen in Pagett above).

The statement of law is now clear: Although a break in the chain of causation is possible, following Jordan, medical intervention is unlikely to break the chain and, following Cheshire, will only do so where the intervention is ‘so independent … and in itself so potent in causing death, that [the jury] regard the contribution made by [the defendant’s] acts as insignificant’.

As a final note, according to the Court of Appeal in R v Suratan [2004] EWCA Crim 1246, juries require careful guidance on the issues before them, especially when they are required to decide the cause of death and whether medical treatment was so ‘palpably wrong’ that the defendant is no longer the substantial and operating cause of death. See also R v Dear [1996] Crim LR 595 and McKechnie. Be aware, however, as with all expert evidence, the jury are entitled to ignore it (R v Stockwell (1993) 97 Cr App R 260).

in practice

Do not confuse the effects that Smith and Cheshire had on the decision in Jordan. Jordan remains good law and is an authority that you can use to argue that the chain of causation is broken. Use the facts of Jordan to assist you, and if the facts are similar (ie a wound had largely healed and the treatment so palpably wrong), use them to suggest that the chain is broken. Ensure you substantiate why you think the chain is broken and battle against the arguments that suggest the chain remains intact.

An interesting application of the rule in Smith, and later in Cheshire, is the decision in R v Malcherek; R v Steel [1981] 2 All ER 422, which concerned the switching off of a life support machine several days after the defendant had inflicted serious wounds upon the victim. The defendant argued that the act of the doctor in disconnecting the life support machine had broken the chain of causation and caused the death of the victim. The defendant argued that this was so despite the injuries inflicted. Lord Lane CJ in the Court of Appeal concluded:

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 practitioners. 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.

The defendant, therefore, remained the operating and substantial cause of death, with Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) commenting that, ‘After all, what did the victim die from when the machine was switched off, if not the injuries inflicted by the defendant?’ Again, it would appear as though policy and good sense dictates the flow of this area of law with Jefferson (Criminal Law, 12th edn (Pearson, 2015)) quite usefully summarising that the ‘courts seem to be pulling the law on causation to exculpate doctors and the police in order to catch the attacker’.

An interesting point that arises here and relates back to our discussion of omission liability concerns whether the withdrawal of treatment is an act or an omission. Kennedy (‘Switching Off Life Support Machines’ [1977] Crim LR 443) points out that the withdrawal of treatment may be considered an act (by physically turning off the life support machine) or an omission (by failing to continue to provide treatment). The distinction in this case is essentially moot given that we are concerned with the medical intervention and whether such would break the chain of causation; however, it may be relevant when one considers whether an omission can be ‘free, deliberate and informed’.