On 28 January 2016 a jury in the Inner London Crown Court was directed to acquit both Maidstone and Tunbridge Wells NHS Trust and Dr Errol Cornish (EC). This followed successful applications by both defendants for a ruling that there was no case to answer.
DAC Beachcroft represented the Trust after it was charged with an offence under the Corporate Manslaughter and Corporate Homicide Act 2007 (the Act). EC was charged with gross negligence manslaughter. Both charges followed the death of Frances Cappuccini on 9 October 2012. A second anaesthetist, Dr Nadeem Azeez (NA) would have been charged alongside EC, but for his return to Pakistan.
Mrs Cappuccini suffered a cardiac arrest due to complications which followed a successful caesarean section. She was initially under the care of NA who undertook prolonged efforts to ventilate Mrs Cappuccini after she failed to re-awaken from an anaesthetic. He was then assisted by EC, a locum consultant anaesthetist, before two further consultants took over. Neither NA nor EC were involved in her care in the 2 ½ hours prior to Mrs Cappuccini’s death.
The case against the Trust was based on alleged breaches of duty in relation to the following issues:
- The interview and appointment process for NA and EC, based on the CPS's expert evidence that neither doctor had sufficient qualifications or experience to be appointed to the roles they were performing on 9 October 2012;
- The appraisal and general supervision of the doctors; again based on one expert's opinion that the Trust's appraisals of NA were somehow deficient; and
- The supervision of NA on 9 October 2012. This argument relied almost exclusively on the fact that there was no named consultant for supervision recorded in Mrs Cappuccini's medical notes.
The CPS's case relied heavily on the opinions of Professor Phillip Hopkins who had been involved in the case from the start and had advised the Police during interviews under caution. His evidence was undermined during effective cross examination by counsel for the Trust, John Cooper QC.
In a detailed ruling following 7 days of prosecution evidence Mr Justice Coulson comprehensively dismantled the cases against both defendants, describing the case against EC as being "as far removed from a gross negligence manslaughter case as it is possible to be". He also referred to elements of Professor Hopkins' evidence against the trust as "perverse" and found "there was no evidence that [the Trust's alleged failure to carry out effective appraisals]… was a systemic failure of management or organisation of activities.
Coulson J also found that the none of the allegations against the Trust amounted to breaches which could be characterised as 'gross' pursuant to the Act, and further that "There was no evidence that any of the alleged breaches against the Trust, even if they were gross, caused or contributed to the death of Mrs Cappuccini."
The Judge's comments clearly call into question the decision taken by the CPS to pursue the prosecution and both defendants have been granted time to consider whether to pursue applications for wasted costs.
The Commencement Argument
At a preliminary hearing in October 2015, the Trust applied to exclude evidence in relation to NA’s appointment on the basis that it could not form part of any alleged offence as it predated the coming into force of the Act in April 2008. Coulson J ruled that whilst evidence relating to Dr A’s appointment could be referred to as part of the background to the case, it could not form part of any alleged breach of duty on the date of the incident on 9 October 2012. Whilst this point was clearly explained to the jury at the start of the trial, it is perhaps fortunate that they were never called upon to undertake the difficult exercise of trying to exclude this evidence from their consideration of the allegations of breach of duty against the Trust.
Section 1(3) of the Act states that:
"An organisation is guilty of an offence … only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach …"
The Trust made an early application for better particulars from the CPS on the basis that the Case Summary contained no definition of senior management or an explanation of how the Trust’s senior management was alleged to have organised its activities in a way that amounted to causative breach of duty. The CPS relied on the argument that its allegations of breach of duty were self-evidently matters of corporate governance which could only have been attributable to the senior management of the Trust.
Whilst Coulson J allowed the Trust’s application, he ruled in October 2015 ( EWHC 2967 (QB)) that the CPS need only identify the lowest tier of Trust employees which formed part of its senior management. In his ruling Coulson J disagreed with the Trust’s submission that the CPS had still failed to demonstrate a link between the Trust's alleged breaches of duty and its senior management. Ultimately, this issue was eclipsed by the Crown’s failure to provide evidence that could be put to a jury on the issues of breach of duty, grossness and causation.
This case involved the largest corporate manslaughter defendant to date and it had been widely hoped that we would glean some useful guidance on what “senior management” means for large organisations in corporate manslaughter cases and what type of evidence would be required in relation to S1(3) of the Act. However, the weakness of the prosecution’s case on all other elements of the offence meant that the senior management point was never explored by a jury, and the Judge felt he did not need to go beyond his October 2015 ruling on the issue.
The case now leaves us with the worrying prospect that the CPS might repeat their approach (and the Judge’s ruling) in other cases, having concluded that all they need do is identify a tier of management, without particularising in any detail the way in which senior management played a role in the organisation’s alleged breach of duty. If that tactic is adopted it will represent a complete shift away from the identification principle and arguably a departure from what many practitioners considered was the effect of section 1(3) of the Act.
This leaves large organisations vulnerable to the somewhat circular argument that activities which have the potential to cause a death, must by definition be matters of such weight that they could only have been managed or organised by senior management. Based on our experience in this case, it will remain vital for other large organisations facing a corporate manslaughter charge to be able to adduce evidence that will demonstrate the extent of senior management's involvement in the alleged breach and to distinguish it from a specific event, where the judgement of an individual has been a key factor in the alleged breach.
The CPS took the view that the case against the Trust could only succeed if the jury found that there was sufficient evidence to convict NA or EC of gross negligence manslaughter. It was never clear why the CPS limited their case in this way and Coulson J indicated his view that those conclusions if found by the jury' "…would not necessarily establish the required causation against the Trust" and further that "The case against [EC] and the theoretical case against [NA], exists wholly independently of the case against the Trust… it is perfectly possible to see ways in which, on other facts, the Trust could have been liable under the 2007 Act whilst [EC] and [NA] were not guilty of gross negligence manslaughter."
What can we learn from this case?
Coulson J's ruling emphasises the height of the threshold required to support allegations of grossness and causation in corporate manslaughter and gross negligence manslaughter cases, particularly in a clinical setting. It also makes clear that the prosecution need to properly support with evidence all of its allegations of breach of duty, rather than simply coalescing them into a general allegation that they demonstrate a failure to manage or organise a defendant's activities.
Whilst the case did not provide further useful guidance on the senior management issue, and it may result in less effort by the CPS to particularise that element of the offence in future cases, further legal argument on that issue is by no means ruled out.