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05 Feb 2016

Speculative prosecution undermines a tragedy

Why a criminal trial was not the right forum for this medical case in which prosecution was brought on insufficient evidence

“Tragic case from which huge lessons must be learnt”, so tweeted Jeremy Hunt while linking to news reports of the trial of Dr Errol Cornish and Maidstone and Tunbridge Wells NHS Trust (www.thetimes.co.uk/tto/news/uk/article4677291.ece).

The health secretary was, of course, referring to the alleged medical shortcomings that led to Frances Cappuccini’s death following a caesarean section. He might just as easily, though, have been referring to the lessons that must now be learnt from Mr Justice Coulson’s decision to halt the trial by directing the jury to find both defendants not guilty.

Some may speculate as to whether any political hopes lay with the success of the first corporate manslaughter prosecution against an NHS Trust. If so, they could not have been more firmly dashed by Mr Justice Coulson’s assessment. Of the four elements identified as necessary for Dr Cornish to be convicted, he was unable to identify sufficient evidence to support any one of them. Of the allegations against the trust, he was equally unable to conclude that any of them constituted a breach of duty, or were causative of Mrs Cappuccini’s death.

One would have hoped that the first case of this kind would only have been brought if it met the legal tests required to start a prosecution. As it is, an opportunity has been lost on a dangerously speculative prosecution case lacking any real evidential foundation.

The judgment underlines the extremely high threshold of negligence required for corporate and gross negligence manslaughter. Accordingly, the CPS must be more cautious in future so that cases that ought not to be the subject of criminal trials are allowed to proceed through the coroners courts and civil claims are more speedily resolved in the interests of all concerned, especially the bereaved families.

Perhaps the only useful indicator for future cases was Mr Justice Coulson’s opinion that, contrary to the prosecution’s submissions, it would have been possible for the trust to have been found guilty, even if its staff had been acquitted.

There may have been a wish to see the matter through, despite Dr Nadeem Azeez (the anaesthetist responsible for Mrs Cappuccini’s primary care) not appearing at the trial, having left the UK. Whatever the case against him, the prosecution of those on the periphery was never an appropriate substitute for the family or the public interest.

Mr Justice Coulson is to be praised for taking the bold step to halt this trial, which carried with it a considerable emotional and financial cost. However, given his analysis of the facts, it was not a difficult decision and there are serious questions about why the prosecution decision was made on such limited evidence.

Those behind the decision may shrug their shoulders and sagely remind us that you can’t win them all. However, in doing so they must acknowledge that this was not a defeat but a basic failure to assess the sufficiency of evidence before charge, the cost of which has been borne by a bereaved family, an innocent doctor and the taxpayer.

As the learned judge rightly acknowledged, a grieving family will inevitably want to know why their daughter, wife and mother died and to have someone held accountable. However, a criminal trial was not the appropriate forum, and will only have delayed the more appropriate inquest and any civil proceedings.

This article is published in The Times.

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