If anyone cares here's a bit of commentary on the Broughton (successful) appeal.

1. The Crown made a cock-up in arguing for a test of manslaughter by gross negligence for failure to get medical attention that is problematic on i) causation and ii) its own inherent logic

2. The Crown submitted that there is manslaughter by gross negligence for a failure to obtain medical treatment - even if the victim would still have died had that medical attention have been given - if that medical attention would have given a 'significant chance of success'

3. The obvious problem here is that there is clearly no causation - if the victim would have died anyway even had the defendant obtained medical attention, the failure of him to get medical attention clearly did not cause the death

4. The formulation is also illogical. Let's revist it: 'There is manslaughter by gross negligence if D fails to get medical attention for V even if V would have died anyway *if that medical attention would have given a significant chance of survival*' (my emphasis).

5. If that medical treatment would have given a significant chance of survival then you really can't say that the person would have died anyway had they received it.

The fact it would have given a significant chance of survival actually boosts a prosecution case.

6. But the Crown should have left 'significant chance of survival' as the test and not added 'Even if V would have died anyway'.

7. The 2nd limb of the test is superfluous for prosecution purposes, fatally weakens the case on causation and due to its illogicality shows that the submitted test hasn't been thought through.

No surprise that the Court of Appeal dismissed this as being the applicable test

8. However there is a curious effect of the inherent illogicality of the test submitted by the Crown. The Crown may mot have spotted the problems with causation (or the illogicality) in its formualtion but the illogicality actually cures the problem of causation.

9. That is because if getting medical attention would have given a significant chance of survival you can argue that the neglect to do so did, in fact, cause the death.

10. So, in summary, the test submitted by the crown:

i) Has a fatal problwm with causation on the face of it
ii) Is inherently illogical
iii) But that inherent illogicality cures the problem of causation at i)

But the Crown did not realise any of this.

11. What is sickening about the case is that the scumbag appellant (defendant) started filming the victim, his GF, when she was clearly having a drug-induced psychotic episode

12. Not going to revist the harrrowing details here but it was clear that she was very unwell and in severe distress. The appellant (defendant) filmed her on one occasion for 50 minutes. He was supposed to be the victim's boyfriend. He might have won his appeal but he's vermin.

13. He was more concerned about avoiding arrest than saving her life.

14. She was in severe distress and severely ill for 5 hours 30 minutes. It was not a moment of panic where he failed to get medical attention in the heat of the moment.

15. There was a problem with the evidence from the pathologist. In his Police statement he said that it was not possible to state beyond all reasonable doubt that earlier medical intervention would have saved V's life.

16. In his first report he said that 'on the balance of probabilities' early intervention (before 9.10pm) would have saved V's life. On cross-examination he clarified, that he still thought there was a good chance of survival if medical attention was obtained after this time.

17. In his 2nd report he put the chance of survival at 9.10pm at 90% but also that it was not possible to state that her death WOULD have been prevented beyond all reasonable doubt.

There was also an absence of evidence as to when V's condition became life-threatening.

18. The appellant argued:

i) not clear when the legal duty to obtain medical care arose
ii) whenever it did arise it is not clear that discharging it would have prevented death
iii) even before it arose it is still not clear that medical attention would have prevented death

19. The Crown submitted that the relevant expert could not be sure (to 95%) that V *would* have survived with early intervention, but gave a 90% chance (at his highest estimate of probability) that she would have.

20. The Court of Appeal concluded that at trial the prosecution needed to rule-out the possibility that V would still have died even if the appellant had sought early medical treatment.

21. Or, stated as a simpler corollary, the test was 'If V had received early medical attention would she have survived?'

22. The Court concluded that the prosecution had not ruled-out the possibility that V would have died even if she had medical attention. In other words, it could not be PROVEN (to crim standard) that failure to obtain early medical attention caused V's death.

So the appeal wins.

23. The Court said that the expert's highest estimate that she would have lived had this early medical attention been sought at 90% didn't preclude the possibility that she would still have died. (Interestingly, judgment wrongly says 'lived'. Going to need to be corrected.)

24. So, in effect, the appeal was successful because:

i) the expert's opinion on the probability that she would have survived had she received treatment was variable
ii) At its highest, 90%, there is still the 10% chance that she would have died

25. The first ground for success isn't an issue and I'll leave that aside. The second one is problematic - and unjust.

26. Consider these hypotheticals based on the current case.

Say the Court believed that there was a 90% chance that her life would have been saved with early medical treatment. In breach of legal duty a defendant failed to obtain that treatment.

27. That 90% chance of survival is not enough to show that the failure to obtain early medical treatment contributed to her death.

Ninety. Fucking. Percent.

28. The law really needs reform here. It curently is: "Having proved gross negligence by failure to act, the prosecution then has to prove beyond all reasonable doubt that this failure caused or greatly contributed to the victim's death."

29. I think it should be:

30. "Where V dies due to an act of omission and the prosecution has proven beyond all reasonable doubt that there has been a breach of duty, the *defendant* has to prove on the balance of probabilities that the breach of duty did not cause/substantially contribute to the death."

31. I think we will all agree that the defendant/appellant here is a scumbag. Yet, he now faces no legal consequences from the result of his inaction, which was to hide his criminality as a drug dealer.

How the fuck can that be right?

32. Will this law change happen? Well, it'd require legislation.

33. The common law has never really liked punsihing acts of omission at all, it's always been uneasy with it. But IMO where the courts have made wrong turns leading to injustices like this, the legislature must step-in to rectify to prevent it happening again.