R v Dr Errol Cornish (First Defendant) Maidstone and Tunbridge Wells NHS Trust (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 16 October 2015 |
| Neutral Citation | [2015] EWHC 2967 (QB) |
| Docket Number | Case No: T20157298 |
| Court | Queen's Bench Division |
| Date | 16 October 2015 |
[2015] EWHC 2967 (QB)
INNER LONDON CROWN COURT
The Hon Mr Justice Coulson
Case No: T20157298
and
Mr John Price QC and Ms Sarah Campbell (instructed by Crown Prosecution Service) for the Prosecution
Mr Ian Stern QC and Mr James Leonard (instructed by Radcliffes LeBrasseur) for the First Defendant
Mr John Cooper QC and Mr Mike Atkins (instructed by DAC Beachcroft) for the Second Defendant
Hearing date: 16 October 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
These proceedings arise out of the tragic death of Mrs Frances Cappuccini on 9 October 2012 at Pembury Hospital in Tunbridge Wells. Earlier that day her second son Giacomo was safely delivered by Caesarean section. Thereafter Mrs Cappuccini suffered extensive bleeding and was transferred to theatre for an examination under anaesthetic. It is the Crown's case that, from this point on, grave errors were made by the anaesthetists who were caring for Mrs Cappuccini, with the result that she fell into cardiac arrest. She died at 4:20pm that afternoon.
Two anaesthetists are identified in these proceedings. The first to treat Mrs Cappuccini was Dr Nadeem Azeez. He returned to Pakistan during the investigation into Mrs Cappuccini's death and has not returned. He has not been charged. The second anaesthetist was Dr Errol Cornish, the first defendant in these proceedings, who is charged with the manslaughter of Mrs Cappuccini by gross negligence.
Both anaesthetists were employed by the Maidstone and Tunbridge Wells NHS Trust ("the Trust"). They are charged with corporate manslaughter contrary to Section 1(1) of the Corporate Manslaughter and Corporate Homicide Act 2007 ("the 2007 Act"). There is a suggestion in the papers that this is the first time that an NHS Trust has been the subject of such a charge. The particulars of the offence are in these terms:
"MAIDSTONE AND TUNBRIDGE WELLS NHS TRUST being a body corporate, on the 9 th day of October 2012 caused the death of Frances Cappuccini by a gross breach of its duty of care owed to the said Frances Cappuccini, of which breach the management and organisation of its activities by the senior management of the said NHS Trust was a substantial element, in that it failed to take reasonable care to ensure that the anaesthetists involved in the care of Mrs Cappuccini held the appropriate qualifications and training for their role and further failed to take reasonable care to ensure that there was the appropriate level of supervision for the anaesthetic treatment of Mrs Cappuccini."
At a hearing on 4 August 2015, Singh J transferred the hearing of the trial in this case from Maidstone Crown Court to Inner London Crown Court. The trial is fixed to start on 12 January 2016. I have been designated as the trial judge.
At the same hearing, Singh J fixed this hearing in order that I could "hear legal arguments on two applications" by the Trust. These two applications are:
(a) That the Crown should be ordered to abandon those aspects of their case that relate to events before the 2007 Act came into force, or prosecute for manslaughter by gross negligence at common law instead of corporate manslaughter;
(b) That the Crown provide "proper particulars of the allegations that the way in which the Trust's activities were managed or organised by senior management was a substantial element in the alleged gross breach of duty".
In addition, there is a third issue which I am asked to decide, which relates to the precise label to be attached to today's hearing. This goes only to the question of any appeal from my ruling on the issue at paragraph 5(a) of above.
I am very grateful to all the counsel for their efficient and concise written and oral submissions. The issues between them were, as they emerged, relatively straightforward. However, in order for me to deal with them satisfactorily, it is, I am afraid, necessary to set out rather a lot of background material.
THE APPLICATION IN RESPECT OF THE 2007 ACT
The Issue
The Trust's submission is that, because the 2007 Act came into force on 6 April 2008, the Crown cannot rely on any events which took place before that date in support of the charge of corporate manslaughter. In particular, they say that the references in the Case Summary to the appointment of Dr Azeez in 2007, and the upgrading of his rank on 1 April 2008 to that of speciality doctor, cannot form part of the charge under Section 1(1) of the 2007 Act. The Trust would like the Court to order, either that such allegations (and the evidence relating to them) be abandoned; or that instead there should be a prosecution for gross negligence manslaughter.
The relevant parts of the 2007 Act are as follows:
(a) Section 1 sets out the offence:
"The Offence
(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised —
(a) causes a person's death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
(2) The organisations to which this section applies are —
(a) a corporation;
(b) a department or other body listed in Schedule 1;
(c) a police force;
(d) a partnership, or a trade union or employers' association, that is an employer.
(3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).
(4) For the purposes of this Act —
(a) "relevant duty of care" has the meaning given by section 2, read with sections 3 to 7;
(b) a breach of a duty of care by an organisation is a "gross" breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;
(c) "senior management", in relation to an organisation, means the persons who play significant roles in —
(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities."
(b) Section 20 abolishes the offence of gross negligence manslaughter in so far as it relates to companies:
"20. Abolition of liability of corporations for manslaughter at common law
The common law offence of manslaughter by gross negligence is abolished in its application to corporations, and in any application it has to other organisations to which section 1 applies."
(c) Section 27 sets out various transitional provisions:
"27 Commencement and savings
(1) The preceding provisions of this Act come into force in accordance with provision made by order by the Secretary of State.
(2) An order bringing into force paragraph (d) of section 2(1) is subject to affirmative resolution procedure.
(3) Section 1 does not apply in relation to anything done or omitted before the commencement of that section.
(4) Section 20 does not affect any liability, investigation, legal proceeding or penalty for or in respect of an offence committed wholly or partly before the commencement of that section.
(5) For the purposes of subsection (4) an offence is committed wholly or partly before the commencement of section 20 if any of the conduct or events alleged to constitute the offence occurred before that commencement."
Reference was also made to paragraph 66 of the Explanatory Notes that went with the Act. This made it clear that the 2007 Act was not retrospective, and referred to the common law offence of manslaughter by gross negligence remaining in place. In addition, the guidance issued by the Ministry of Justice in October 2007 also made plain that the reform was not retrospective, but reiterated that it would no longer be possible to bring proceedings for gross negligence manslaughter against a company. It referred to Section 27(4) as dealing with cases that occurred wholly or partly before the new offence came into force, and said that prosecutions in those cases would continue to be possible, even after 6 April, on the basis of the existing common law. The legal guidance issued by the CPS to their prosecutors repeated many of the same points.
The possible difficulties with the operation of the transitional provisions were discussed, albeit briefly, at the end of an article on the 2007 Act by Peter Ferguson, at [2007] S.L.T 251. The thrust of that article was unsurprisingly concerned with the particular consequences for the law in Scotland, although it does provide some useful background.
In my judgment, much the greatest assistance could be found in the judgment of HHJ Gilbart QC (as he then was) in R v Lion Steel Equipment Limited and others 4 May 2012 (unreported). There, count 1 was a charge of corporate manslaughter against Lion Steel following the death of an employee who fell through the roof when repairing a leak. That happened just seven weeks after the 2007 Act came into force. Count 2 was a charge of manslaughter against three named directors. Lion Steel argued that count 1 could not be proceeded with because it was based entirely on the failure of the company to act on warnings which had been given over the previous years (to the effect that the roof was unsafe), all of which predated the coming into force of the...
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