England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: 139 JP 841, [1975] EWCA Crim 3, [1975] WLR 1411, [1975] 1 WLR 1411, 61 Cr App Rep 271, [1975] 3 All ER 446

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JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1975] EWCA Crim 3
		Case No. 4512/C/74

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

16th July 1975.

B e f o r e :

LORD JUSTICE LAWTON MR. JUSTICE THOMPSON
and
MR. JUSTICE SHAW
____________________

	R E G I N A
	-v-
	ROBERT KONRAD BLAUE

____________________

MR. J. COMYN, Q.C. and MR. R. M. STEWART appeared as Counsel for the Appellant.
MR. D. HERROD, Q.C. AND MR. FENWICK appeared as Counsel for the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE LAWTON: On 17th October, 1974 at Teesside Crown Court after a trial before Mocatta, J. the Appellant was acquitted of the murder of a girl named Jacolyn Woodhead but was convicted of her manslaughter on the ground of diminished responsibility (count 1). He was also convicted of wounding this girl with intent to do her grievous bodily harm (count 2) and of indecently assaulting her (count 3). He pleaded guilty to indecently assaulting two other women (counts 4 and 5)- He was sentenced to life imprisonment on counts 1 and 2 and to concurrent sentences of twelve months' imprisonment on counts 3, 4 and 5.

He appeals with the leave of this Court against his conviction on count 1 and, if his appeal is successful, he applies for leave to appeal against his sentence on count 2.

The victim was a young girl aged eighteen. She was a Jehovah's Witness. She professed the tenets of that sect and lived her life by them. During the late afternoon of 3rd May, 1974 the Appellant came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. The Appellant ran away. The girl staggered out into the road. She collapsed outside a neighbour's house. An ambulance took her to hospital, where she arrived at about 7.30 p.m. Soon afterwards she was admitted to the intensive care ward. At about 8.30 p.m. she was examined by the surgical registrar who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion. As soon as the girl appreciated that the surgeon was thinking of organising a blood transfusion for her, she said that she should not be given one and that she would not have one. To have one, she said, would be contrary to her religious beliefs as a Jehovah's Witness. She was told that if she did not have a blood transfusion she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so. The prosecution admitted at the trial that had she had a blood transfusion when advised to have one she would not have died. She did so at 12.45 a.m. the next day. The evidence called by the prosecution proved that at all relevant times she was conscious and decided as she did deliberately, and knowing what the consequences of her decision would be. In his final speech to the jury, Mr. Herrod for the prosecution accepted that the girl's refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the Appellant was suffering from diminished responsibility.

Towards the end of the trial and before the summing-up started Counsel on both sides made submissions as to how the case should be put to the jury. Counsel then appearing for the Appellant invited the judge to direct the jury to acquit the Appellant generally on the count of murder. His argument was that the girl's refusal to have a blood transfusion had broken the chain of causation between the stabbing and her death. As an alternative he submitted that the jury should be left to decide whether the chain of causation had been broken. Mr. Herrod submitted that the Judge should direct the jury to convict, because no facts were in issue and when the law was applied to the facts there was only one possible verdict, viz. manslaughter by reason of diminished responsibility.

When the Judge came to direct the jury on this issue he did so by telling them that they should apply their common-sense. He then went on to tell them they would get some help from the cases to which Counsel had referred in their speeches. He reminded them of what Lord Parker, C.J., had said in R. v. Smith, reported in (1959) 43 Criminal Appeal Reports at page 121 and what Maule J. had said 133 years before in R. v. Holland, reported in (1841) 2 M and R Ch. 351. He placed particular reliance on what the latter Judge had said. The jury, he said, might find it "most material and most helpful". He went on: "This is one of those relatively rare cases, you may think, with very little option open to you but to reach the conclusion that was reached by your predecessors as members of the jury in the Queen against Holland, namely 'yes' to the question of causation that the stabb was still, at the time of this girl's death, the operative cause of death - or a substantial cause of death. However, that is a matter for you to determine after you have withdrawn to consider your verdict." Mr. Comyn has criticised that direction on three grounds: first, because Holland should no longer be considered good law; secondly, because Smith, when rightly understood, does envisage the possibility of unreasonable conduct on the part of the victim breaking the chain of causation; and thirdly because the Judge in reality directed the jury to find causation proved although he used words which seemed to leave the issue open for them to decide.

In Holland, the defendant in the course of a violent assault, had injured one of his victim's fingers. A surgeon had advised amputation because of danger to life through complications developing. The advice was rejected. A fortnight later the victim died of lockjaw. "The real question is", said Maule, J., "whether in the end the wound inflicted by the prisoner was the cause of death." That distinguished Judge left the jury to decide that question as did the Judge in this case. They had to decide it as juries always do, by pooling their experience of life and using their common sense. They would not have been handicapped by a lack of training in dialectics or moral theology.

Maule, J.'s direction to the jury reflected the common law's answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself. See Hale, Pleas of the Crown, (1800 edition), pp. 427-428. The common law in Sir Matthew Hale's time probably was in line with contemporary concepts of ethics. A man who did a wrongful act was deemed morally responsible for the natural and probable consequences of that act. Mr. Comyn asked us to remember that since Sir Matthew Hale's day the rigour of the law relating to homicide has been eased in favour of the accused. It has been - but this has come about through the development of the concept of intent, not by reason of a different view of causation. Well known practitioner's text books, such as Halsbury, 3rd edition, Volume 10, p. 706 and Russell on Crime, 12th edition, Vol.1, p. 30 continue to reflect the common law approach. Text books intended for students or as studies in jurisprudence have queried the common law rule. See Hart and Honore, Causation in Law, pp. 320-321 and Smith and Hogan, 3rd edition, p. 214.

There have been two cases in recent years which have some bearing upon this topic - Regina v. Jordan, (1956) 40 Criminal Appeal Reports and Smith. In Jordan the Court of Criminal Appeal, after conviction, admitted some medical evidence which went to prove that the cause of death was not the blow relied upon by the prosecution but abnormal medical treatment after admission to hospital. This case has been criticised but it was probably rightly decided on its facts. Before the abnormal treatment started the injury had almost healed. We share Lord Parker's opinion that Jordan should be regarded as a case decided on its own special facts and not as an authority relaxing the common law approach to causation. In Smith the man who had been stabbed would probably not have died but for a series of mishaps. These mishaps were said to have broken the chain of causation. Lord Parker, in the course of his judgment, commented as follows: "It seems to the Court that if, 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 flow from the wound. Putting it 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." The physical cause of death in this case was the bleeding into the pleural cavity arising from the penetration of the lung. This had not been brought about by any decision made by the deceased girl but by the stab wound.

Mr. Comyn tried to overcome this line of reasoning by submitting that the jury should have been directed that if they thought the girl's decision not to have a blood transfusion was an unreasonable one, then the chain of causation would have been broken. At once the question arises -reasonable by whose standards? Those of Jehovah's Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine (2 Maccabees, Ch. 6, v. 18-31) or of Sir Thomas Moore who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church in England. Those brought up in the Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused their own deaths.

As was pointed out to Mr. Comyn in the course of argument, two cases, each raising the same issue of reasonableness because of religious beliefs, could produce different verdicts depending on where the cases were tried. A jury drawn from Preston, sometimes said to be the most Catholic town in England, might have different views about martyrdom to one drawn from the inner suburbs of London. Mr. Comyn accepted that this might be so: it was, he said, inherent in trial by jury. It is not inherent in the common law as expounded by Sir Matthew Hale and Maule, J. It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.

If a victim's personal representatives claim compensation for his death the concept of foreseeability can operate in favour of the wrongdoer in the assessment of such compensation: the wrongdoer is entitled to expect his victim to mitigate his damage by accepting treatment of a normal kind. See Stelle v. R. George and Co. Ltd., (1942) Appeal Cases, 497. As Mr. Herrod pointed out, the criminal law is concerned with the maintenance of law and order and the protection of the public generally. A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law.

The issue of the cause of death in a trial for either murder or manslaughter is one of fact for the jury to decide. But if, as in this case, there is no conflict of evidence and all the jury has to do is to apply the law to the admitted facts, the Judge is entitled to tell the jury what the result of that application will be. In this case the Judge would have been entitled to have told the jury that the Appellant's stab wound was an operative cause of death. The appeal fails.

(Counsel asked the Court to certify that there was a point of law of general public importance in this case)

LORD JUSTICE LAWTON: We have given consideration to your submission, Mr. Comyn, and we have come to the conclusion that this does not come within the terms of the Act because in our judgment what we have decided is settled law, and it has been settled for a long time. Accordingly we refuse to certify.