R. v Cornish & Anor [2015] EWHC 2967 (QB)

[2015] EWHC 2967 (QB)Case No T20157298INNER LONDON CROWN COURTDate 16 October 2015
Before
THE HON MR JUSTICE COULSON
Between
Dr Errol CornishFirst DefendantMaidstone and Tunbridge Wells NHS TrustSecond Defendant
Mr John Price QC and Ms Sarah Campbell(instructed by Crown Prosecution Service) for ProsecutionMr Ian Stern QC and Mr James Leonard(instructed by Radcliffes LeBrasseur) for First DefendantMr John Cooper QC and Mr Mike Atkins(instructed by DAC Beachcroft) for Second DefendantHearing Hearing date: 16 October 2015
JudgmentThe Hon. Mr Justice Coulson:
[1]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.[2]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.[3]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 9th 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.”
[4]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.[5]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”.[6]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.[7]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.[2]THE APPLICATION IN RESPECT OF THE 2007 ACT 2.1. The Issue[8]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.[9]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.” (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. (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. (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.”
[10]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.[11]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.[12]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 2007 Act.[13]The learned judge concluded that, before Lion Steel had alerted the Crown to the commencement date point, it was (wrongly) approaching the case on the basis that it could rely on all of the preceding management failures, regardless of when they occurred. The judge ruled that the Crown could not look to evidence of “activities”, or whether they involved a “breach” or a “gross breach” of duty, where such activities, breach or gross breach occurred before the date of commencement, “save in so far as they are relevant to the exercise of a duty on and after that date, or whether a breach after that date was a gross breach”: see paragraph 27 of the judgment.[14]The judge did not agree with Lion Steel’s submission that the evidence about the pre-commencement events should be excluded altogether. He said that such a submission was “wrong and indeed entirely unrealistic”; and that Section 27 was “not an exercise in amnesia”. The judge concluded that count 1 could proceed, provided the jury was only asked to consider events before the commencement date in the context of “(i) informing their decision as to whether the senior management knew of facts as at 6 April 2008 or later, or (ii) whether their knowledge of past events rendered their conduct as at 6 April 2008 or afterwards as amounting to a gross breach of the duty upon them” (paragraph 46 of the judgment). 2.2. Submissions[15]On behalf of the Trust, Mr Cooper QC submitted that:(a) The offence of corporate manslaughter does not apply to anything done or omitted before 6 April 2008;(b) A case which relies upon evidence of acts or omissions prior to 6 April 2008 cannot be brought under the 2007 Act;(c) The transitional provisions expressly envisage liability for offences committed partly before that date being pursued under the common law, not the 2007 Act; and(d) The references in the case summary, to the effect that Dr Azeez should not have been appointed as a locum staff grade doctor (16 July 2007), or a substantive staff grade doctor (1 October 2007), or that that he was inappropriately assimilated into the speciality doctor grade (1 April 2008), cannot form part of a charge under Section 1 of the 2007 Act.[16]On behalf of the Crown, Mr Price QC submitted that:(a) The indictment makes clear that the offence of which the Trust is accused was committed on 9 October 2012, and the particulars indicate what breaches had occurred, or were occurring , on that date;(b) Section 27 is concerned only with retrospectivity of criminal liability. It is not concerned with the relevance or admissibility of evidence which is not, and need not, be confined to events occurring on 9 October 2012, or indeed the period after 6 April 2008.(c) Evidence concerning the appointment of Dr Azeez in 2007/2008 is relevant to the alleged breaches on 9 October 2012 because, for example, that may go to what the Trust knew or ought to have known about his training and qualifications as at 9 October 2012. 2.3. Analysis[17]In my view, it would not be appropriate either to order the Crown to abandon their reliance on any events in 2007 or early 2008, or to order them instead to prosecute for manslaughter by gross negligence at common law. Subject to the particular caveat that I address in paragraph 20 below, the Crown’s case, as currently set out in the case summary, does not offend against the 2007 Act. There are a number of reasons for that conclusion.[18]Firstly, as a matter of commonsense, it would, I think, be wrong to suggest that any prosecution for corporate manslaughter would have to be abandoned simply because it referred to an event that occurred before 6th April 2008, even if there was no suggestion of any criminal liability until four and a half years after that date. I think that would be contrary to the purpose of the 2007 Act.[19]Secondly, I consider that what matters in this case is the run up to and the events on 9 October 2012, not events which occurred five years before Mrs Cappuccini was even admitted to hospital. In that respect, it is not dissimilar to the situation where a defendant is charged with offences under the Sexual Offences Act 2003. Whilst that defendant cannot be charged with offences under that Act that were committed before it came into force, that does not preclude the Crown from addressing, in evidence (whether by way of background or bad character or howsoever), any events that might be relevant to the offences with which he is charged, even if those events occurred before the Act came into force.[20]There can be no doubt that the pre-commencement events in 2007 and early 2008 cannot be activities to found the charge of corporate manslaughter. So for example, Dr Azeez’s appointment in 2007 cannot, of itself, be an activity that goes to that charge. But that and other pre-commencement events could be relevant to the charges which are brought under the 2007 Act, in the way outlined by HHJ Gilbart QC in Lion Steel, which I have cited at paragraph 14 above. They do not found the charge, but they may be relevant to it.[21]It was not my understanding that Mr Price QC disagreed with that analysis. In addition, I note that paragraph 112 of the Case Summary puts the corporate and gross negligence manslaughter allegations in this way:
“Summary 112. In summary the allegations against the three defendants are as follows: • Dr Azeez: that he breached the duty of care he owed Mrs Cappuccini by failing, between 12:35 and 14:10, to re-intubate Mrs Cappuccini when it was apparent to him that she was unable to adequately breathe independently. It is alleged that this was a gross breach of duty because the failure was “a failure of fundamental anaesthetic practice” and a failure to perform “actions that would have been expected of the most junior doctor let alone an anaesthetist”. • Dr Cornish: that he breached the duty of care he owed to Mrs Cappuccini by failing, between 13:00 and 14:10, to re-intubate Mrs Cappuccini when it was apparent to him that she was unable to adequately breathe independently. It is alleged that this was a gross breach of duty because the failure was “a failure of fundamental anaesthetic practice” and a failure to perform “actions that would have been expected of the most junior doctor let alone an anaesthetist”. • Maidstone and Tonbridge Wells NHS Trust: that the way the Trust’s activities were managed or organised by its senior management breached the duty of care it owed to Mrs Cappuccini by:  Appointing Dr Azeez to perform a role he was not qualified to do;  failing to assess and supervise Dr Azeez in accordance with National Guidance;  failing to ensure a process for the identification and recording of the consultant anaesthetist responsible for Mrs Cappucini’s care; and failing to comply with the Code of Practice when appointing Dr Cornish as locum consultant and that these failures amount ‘to a gross breach of that duty and that they caused the death of Mrs Cappuccini.”
The first bullet point relating to the Trust refers to the appointment of Dr Azeez. For the reasons I have given, that cannot be a constituent element of the charge of corporate manslaughter. Mr Price QC accepted that, saying that this was a mistake, and that the word appointing should be replaced by the word employing. On that basis, I am satisfied that the allegations set out in the Case Summary do not offend against the 2007 Act. • Dr Azeez: that he breached the duty of care he owed Mrs Cappuccini by failing, between 12:35 and 14:10, to re-intubate Mrs Cappuccini when it was apparent to him that she was unable to adequately breathe independently. It is alleged that this was a gross breach of duty because the failure was “a failure of fundamental anaesthetic practice” and a failure to perform “actions that would have been expected of the most junior doctor let alone an anaesthetist”. • Dr Cornish: that he breached the duty of care he owed to Mrs Cappuccini by failing, between 13:00 and 14:10, to re-intubate Mrs Cappuccini when it was apparent to him that she was unable to adequately breathe independently. It is alleged that this was a gross breach of duty because the failure was “a failure of fundamental anaesthetic practice” and a failure to perform “actions that would have been expected of the most junior doctor let alone an anaesthetist”. • Maidstone and Tonbridge Wells NHS Trust: that the way the Trust’s activities were managed or organised by its senior management breached the duty of care it owed to Mrs Cappuccini by:  Appointing Dr Azeez to perform a role he was not qualified to do;  failing to assess and supervise Dr Azeez in accordance with National Guidance;  failing to ensure a process for the identification and recording of the consultant anaesthetist responsible for Mrs Cappucini’s care; and failing to comply with the Code of Practice when appointing Dr Cornish as locum consultant[22]Thirdly, I consider that s.27(3) of the 2007 Act is dealing with single acts or omissions. It is not dealing with what might be called a continuing omission which existed both before and after the relevant commencement date. Assume for this purpose that Dr Azeez should not have been employed by the Trust in October 2007, because his qualifications and training were inadequate. That cannot form a constituent element of the charge under the 2007 Act, for the reasons that I have given. But if he received no subsequent training, and his qualifications remained inadequate, then it may be said that the Trust should not have continued to employ him after 6 April 2008, and should not have been employing him on 9 October 2012. On that analysis, the material omission was on or around 9 October 2012, and the fact that it can be traced back to 2007 is, in my view, immaterial.[23]I consider that this analysis reflects real life. It also works the other way. Assume that the Trust should not have appointed Dr Azeez in 2007, but that thereafter he did a number of training courses, enhanced his qualifications, and satisfied a rigorous appraisal process, so that by 2012 no criticism could be made of his continuing employment. On that basis, of course, there would be no relevant act or omission by the Trust and no breach of s.1.[24]Although Mr Cooper QC argued that it was not possible to bring pre-commencement acts or omissions within the scope of the 2007 Act merely by ‘relying on corresponding post-commencement failures to reverse them’, I do not think that that is what the Crown are doing. As I have said, it seems to me that the Crown’s case is based entirely on a consideration of the position as at 9 October 2012. Moreover, I do not think that the Crown’s case (or my analysis of it) is particularly radical or novel. Indeed I think it is what HHJ Gilbart QC had in mind when he said, at paragraph 27 of his judgment in Lion Steel, that events prior to commencement can be relevant to the existence of a duty after commencement.[25]Of course, depending on the evidence, it may be more difficult for the Crown to prove that the Trust should have done something positive about Dr Azeez in 2012 (once he was an employee), than it would be to prove they should not have offered him a post in the first place. But that is an evidential matter, and is far down the line, a matter for the trial itself. It does not go to whether or not the Trust is properly charged with corporate manslaughter.[26]Finally, I note that at paragraph 39 of his judgment, HHJ Gilbart QC said: “…I do not accept the common view of the Crown and of LSEL that, in the circumstances of this case, LSEL could be prosecuted at common law for manslaughter where the death only occurred after the common law offence had been abolished. (And it should be noted that section 20 does not just prevent prosecution; it abolishes the offence in its application to corporations). In my judgement nothing in section 27 enables a prosecution to be brought against a company in the circumstances of this case for the common law offence of manslaughter by gross negligence, where the death occurred after the commencement date. Judge Gilbart QC’s observations seem to me to have some force. They obviously run counter to Mr Cooper QC’s submission to me. However, since I have decided the application under the 2007 Act on other grounds, it is unnecessary for me to comment further on the judge’s approach.[27]Accordingly, for all those reasons, I do not accede to the Trust’s first application.[3]THE PARTICULARS OF THE ALLEGATIONS 3.1. The Issue[28]The particulars of the corporate manslaughter count I have set out in paragraph 3 above. The Trust complains that this is wholly inadequate for them to understand and prepare for the trial. The Crown on the other hand, refers to the lengthy Case Summary and says no further particulars can or will be given. The Trust’s principal complaint is that the relevant senior management (referred to in Section 1(4) of the 2007 Act) have not been identified. There is also a suggestion that the claim should and could be better particularised as to the breaches alleged.[29]On the identification issue, I notice that Mr Ferguson’s article (paragraph 11 above), on which the Trust relied for other purposes, said that the 2007 Act:
“…arises out of widespread concern at the general inability of the criminal law to fix complains with liability for the deaths caused by their actings. Both Scotland and England and Wales apply the identification principle as the only means of ascribing liability to limited companies. Both jurisdictions have found that the successful prosecution of companies other than one man organisations, is therefore virtually impossible.”
Cases in which the identification procedure precluded or significantly hampered the prosecution of a company for manslaughter include Transco PLC v HM Advocate [2004] JC 29 and R v HM Coroner for East Kent [1989] 88 Crim App R 10 (the case arising out of the Herald of Free Enterprise disaster).[30]As to the provision of particulars more generally, I have been referred to the case of R v Chargot Limited [2008] UKHL 73, where the House of Lords said that the overriding test is one of “fair notice”. Their lordships made clear that, although fairness required giving notice of the relevant allegations, if they were not ingredients of the offence, it did not necessarily mean that each of them had to be proved. 3.2. The Submissions[31]On behalf of the Trust, Mr Cooper QC submitted that:(a) The Crown must prove that the way in which the Trust’s activities were managed or organised, by its senior management, was a substantial element in any gross breach of a relevant duty of care;(b) The Crown had failed to identify either the person or persons responsible for the breaches or the relevant tier of management, or even to show that there was any senior management involvement;(c) The Crown should provide proper particulars identifying the senior managers or at least the tier of management said to be responsible for any gross breach, and explaining how their conduct is said to have been a substantial element in any such breach.[32]On behalf of the Crown, Mr Price QC submitted that:(a) The Case Summary for the PCMH was very detailed and provided proper particulars of the case against the Trust;(b) The identities of those performing senior management roles were something best known to the Trust itself;(c) It was not necessary to identify by name the senior management, because here what mattered was the nature of the relevant activity, namely “the employment/assignment/supervision of senior doctors”. The jury would be entitled to infer that such an activity would necessarily have been the responsibility of senior Trust management, and if not, that was itself a breach;(d) One of the purposes of the 2007 Act was to do away with the identification doctrine which had caused the failure of a number of significant prosecutions in the past. 3.3.

(i) Identification

[33]Taking the issues in stages, I am no doubt that the Crown does not have to name the individuals whom, they say, failed to carry out their management functions properly. That would, I think, be unnecessarily onerous. It would also be artificial, because the names of those involved will be much more likely to be known to the Trust rather than to the Crown. It would be a return to precisely the difficulties of identifying the ‘controlling mind’ which bedevilled the common law position before the 2007 Act.[34]I have not found the alternative suggestion, namely that the Crown should at least identify the relevant tier of management where the default occurred, very easy to decide. On the one hand, I recognise that Section 1(3) of the 2007 Act makes the organisation of the relevant activities by senior management an ingredient of the s.1 offence. I also note that the CPS guide to its own prosecutors on the subject of corporate manslaughter seems to suggest that some detail must be provided. Indeed one paragraph says this:
“Neither ‘significant’ nor ‘substantial’ are defined but the former is likely to be limited to those whose involvement is influential and will not include those who simply carry out the activity. When considering a prosecution under the Act it is essential to obtain an organogram of the organisation in order to identify the senior management and to use that information to determine whether a substantial element of the breach was at a senior management level.”
[35]On the other hand it is not, I think, helpful or an appropriate use of resources, to expect the CPS to delve deep into the labyrinthine management structures of any large NHS Trust like this one. It is not for them to identify precisely who should have been doing what on 9 October 2012. Not only would that be a difficult exercise for the CPS, it might also be impossible to obtain a precise answer: I note that, in this case, there appears to be an argument between those working for the Trust as to who was actually supervising the anaesthetists on the day of Mrs Cappuccini’s death. If the Trust is unclear about this aspect of their hierarchy, how can the Crown be expected to know better?[36]I have to stand back from this debate and try to be realistic. I am sure that the Trust must have some idea of who (in terms of their senior management) may be thought to bear some managerial responsibility for what happened. On the other hand, I do recognise the need for the Crown to do more than simply assume that this was a matter for senior management and that, if somehow it was not, the breach and/or the gross breach prove themselves.[37]Trying to find a balance between those competing positions, I have come to this conclusion. I think the right answer is to require the Crown to identify the tier of management that it considers to be the lowest level of the senior management team within the Trust that is culpable of this offence. It may well be that, subsequently, it will be demonstrated that the relevant tier of senior management was above the level identified by the Crown. But that will not be a difficulty, because any higher tier will be caught by the Crown’s identification of the lowest level of senior management with a responsibility for these events.[38]The effect of this order will be to allow the Trust to know that the management tiers below that tier identified by the Crown are irrelevant to the Crown’s case, and that therefore those particular witnesses would not need to be interviewed, proofs taken etc. It will also require the Crown to particularise the case against that tier of senior management by reference to the ingredients in s.1 of the 2007 Act, so that it is clear how and why the management and organisation of the Trust’s activities by that level of senior management caused or was a substantial element in Mrs Cappuccini’s death and amounted to a gross breach of its duty of care.[39]Beyond that, I am not prepared to order, because to do so would, I think, place an impossible burden on the Crown. I also think it would be contrary to the 2007 Act, which was designed to provide a way round the identification issues created by the charging of a company with manslaughter at common law. (ii) Acts and Omissions[40]I discussed with leading counsel for the Crown and both defendants the issue of particulars more generally. This was fairly raised by the Trust’s application and it was also something which, independently, I considered to be of some importance. I concluded that the Crown should provide particulars of the acts and omissions relied on against the anaesthetists, and the breaches or gross breaches of duty that they allege against the second defendant. I think that is in accordance with the ‘fair notice’ principle. In the present case, whilst those particulars may largely be taken from the existing Case Summary, they are capable of being stripped down into essentially two lists. First, the acts and omissions on the part of the anaesthetists, which they say caused Mrs Cappuccini’s death; and secondly, the management or organisation failures by the Trust which (so it is said) created the circumstances in which the anaesthetists’ acts and omissions occurred and amounted to a gross breach of duty by the Trust. This second list is likely to comprise exactly the same information which I have already required the Crown to provide in paragraph 38 above.[41]The conclusion that those two lists (or something like them) should be prepared by the Crown, is not intended to be a criticism of the current Case Summary. But that document is endeavouring to do rather more than simply identifying the kernel of the case against the defendants, and is an unwieldy instrument for that purpose. Furthermore, as I pointed out to Mr Price QC, the Case Summary contained the usual caveat that the Crown was not bound by its contents, whilst what I have in mind is some form of document by which the Crown is bound, certainly in terms of the proper notice of the allegations on which they rely at trial.[42]Thus, the provision of particulars in the form that I have in mind would allow both defendants to know the case they have to meet. Perhaps even more importantly, as I also discussed with leading counsel, it will provide a proper agenda for the experts. It will be important at the trial to ensure that the expert evidence is properly controlled. In my view, the best way of ensuring that that will happen is for the experts to meet ‘without prejudice’, to go through the two lists which I have indicated, identifying what they agree and what they disagree on, and setting out brief reasons for their disagreement. That will then form clear parameters for their oral evidence.[43]For those reasons, therefore, I consider that particulars of these two parts of its case should be provided by the Crown as soon as possible. I do not make a specific order to that effect because all counsel agreed that it was a good idea, and Mr Price QC indicated that the particulars would be provided. As I have already said, the management information which I have said is required anyway (paragraphs 37 and 38 above) will probably form the second part of the particulars of its case to be provided by the Crown.[4]THE NATURE OF THIS HEARING 4.1. The Issue[44]The Trust ask that I designate this hearing as a preparatory hearing under Section 29(1) of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”). The Crown say that I should not. This designation is relevant to the Trust’s right of appeal. If it is a preparatory hearing, they can appeal; if it is not, they cannot.[45]Section 29 of the 1996 Act provides as follows: “29. Power to order preparatory hearing.(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, [a case of such seriousness] or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing— (a) before [the time when the jury are sworn], and (b) for any of the purposes mentioned in subsection (2), he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held…(2) The purposes are those of— (a) identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial, (b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them, (c) determining an application to which section 45 of the Criminal Justice Act 2003 applies, (d) assisting the judge’s management of the trial, (e) considering questions as to the severance or joinder of charges,(3) In a case in which it appears to a judge of the Crown Court that evidence on an indictment reveals a case of fraud of such seriousness or complexity as is mentioned in section 7 of the Criminal Justice Act 1987 (preparatory hearings in cases of serious or complex fraud)— (a) the judge may make an order for a preparatory hearing under this section only if he is required to do so by subsection (1B) or (1C); (b) before making an order in pursuance of either of those subsections, he must determine whether to make an order for a preparatory hearing under that section; and (c) he is not required by either of those subsections to make an order for a preparatory hearing under this section if he determines that an order should be made for a preparatory hearing under that section; and, in a case in which an order is made for a preparatory hearing under that section, requirements imposed by those subsections apply only if that order ceases to have effect.(4) An order that a preparatory hearing shall be held may be made— (a) on the application of the prosecutor, (b) on the application of the accused or, if there is more than one, any of them, or (c) of the judge’s own motion. (a) before [the time when the jury are sworn], and (b) for any of the purposes mentioned in subsection (2), (a) identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial, (b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them, (c) determining an application to which section 45 of the Criminal Justice Act 2003 applies, (d) assisting the judge’s management of the trial, (e) considering questions as to the severance or joinder of charges, (a) the judge may make an order for a preparatory hearing under this section only if he is required to do so by subsection (1B) or (1C); (b) before making an order in pursuance of either of those subsections, he must determine whether to make an order for a preparatory hearing under that section; and (c) he is not required by either of those subsections to make an order for a preparatory hearing under this section if he determines that an order should be made for a preparatory hearing under that section; (a) on the application of the prosecutor, (b) on the application of the accused or, if there is more than one, any of them, or (c) of the judge’s own motion.[46]Section 31 of the 1996 Act provides as follows:
“31. The preparatory hearing. (1) At the preparatory hearing the judge may exercise any of the powers specified in this section. (2) The judge may adjourn a preparatory hearing from time to time. (3) He may make a ruling as to— (a) any question as to the admissibility of evidence; (b) any other question of law relating to the case. (c) any question as to the severance or joinder of charges. (4) He may order the prosecutor— (a) to give the court and the accused or, if there is more than one, each of them a written statement (a case statement) of the matters falling within subsection (5); (b) to prepare the prosecution evidence and any explanatory material in such a form as appears to the judge to be likely to aid comprehension by [a jury]and to give it in that form to the court and to the accused or, if there is more than one, to each of them; (c) to give the court and the accused or, if there is more than one, each of them written notice of documents the truth of the contents of which ought in the prosecutor’s view to be admitted and of any other matters which in his view ought to be agreed; (d) to make any amendments of any case statement given in pursuance of an order under paragraph (a) that appear to the judge to be appropriate, having regard to objections made by the accused or, if there is more than one, by any of them. (5) The matters referred to in subsection (4)(a) are— (a) the principal facts of the case for the prosecution; (b) the witnesses who will speak to those facts; (c) any exhibits relevant to those facts; (d) any proposition of law on which the prosecutor proposes to rely; (e) the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).” (a) any question as to the admissibility of evidence; (b) any other question of law relating to the case. (c) any question as to the severance or joinder of charges. (a) to give the court and the accused or, if there is more than one, each of them a written statement (a case statement) of the matters falling within subsection (5); (b) to prepare the prosecution evidence and any explanatory material in such a form as appears to the judge to be likely to aid comprehension by [a jury]and to give it in that form to the court and to the accused or, if there is more than one, to each of them; (c) to give the court and the accused or, if there is more than one, each of them written notice of documents the truth of the contents of which ought in the prosecutor’s view to be admitted and of any other matters which in his view ought to be agreed; (d) to make any amendments of any case statement given in pursuance of an order under paragraph (a) that appear to the judge to be appropriate, having regard to objections made by the accused or, if there is more than one, by any of them.

(d) ”

[47]I was referred in the written submissions to a number of authorities on this topic, including R v H [2007] 2 AC 270; R v I [2010] 1 WLR 1125; and R v R, M and L [2013] EWCA Crim 708. However, the modern law and practice seems to me to be neatly summarised by the Lord Chief Justice in R v Gary Quillan and others [2015] EWCA Crim 538. In that case, the Lord Chief Justice said this: “9. This court has given guidance in a number of cases particularly in R v I[2010] 1 WLR 1125, [2010] 1 Cr App R 10 as to the circumstances in which a preparatory hearing under Part III of the 1996 Act should be conducted. In giving the judgment of the court in R v I, the then Vice-President, Hughes LJ, said at paragraph 21: “Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law.” 10. Whilst that is almost invariably the position, there may be special circumstances where a trial will be very long and very costly and where a ruling on a point of law in relation to the legal basis on which a count in the indictment is founded may determine whether or not a trial is required at all. In such a case such a point of law should be determined well before any trial starts. That is not the same thing as saying that it must be resolved in a preparatory hearing. There is a power in any case under s.40 of the 1996 Act to hold a pre-trial hearing and to decide any question of law relating to the case concerned. This procedure does not involve any of the technicalities which have caused some difficulty in relation to preparatory hearings and there is no interlocutory right of appeal (except where the prosecution treats any ruling as a terminating ruling).” “Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law.” 4.2. The Submissions[48]On behalf of the Trust, Mr Cooper QC submitted that the test in Sections 29 and 31 had been met because:(a) This was a serious and complex case in which there will be a lengthy trial;(b) The decision on the interpretation of the 2007 Act would identify the relevant issues for the benefit of the court and the jury and assist the management of the trial;(c) The decision on the interpretation of the 2007 Act was also a question of law relating to the case and therefore met the test under Section 31.[49]On behalf of the Crown, Mr Price QC submitted that the test in Section 29 and 31 had not been met because:(a) The Crown had been right as to its approach so no relevant issue arose;(b) The case was serious but not particularly complex and the length of trial of four weeks was not particularly long;(c) R v I made clear that a preparatory hearing would be beneficial in a few very limited circumstances and R v R stated that it would only arise in the case of “a very high degree of gravity”;(d) That this case in this hearing did not meet that high test. 4.3. Analysis[50]For a variety of reasons, I am not going to designate this hearing as a preparatory hearing within the meaning of the 1996 Act. First I note that it was not designated as a preparatory hearing by Singh J when he made the order to fix it. That is of course far from determinative, but it is a useful starting point.[51]Secondly, I have not decided any issue of law. I have simply demonstrated the relatively limited effect which the 2007 Act might have in this case on the presentation of any events prior to 6 April 2008. That goes, as I have said, to the evidence which the Crown may call and the way in which they deploy it. That is not an issue of law. Accordingly, Section 31 seems to me to be irrelevant.[52]Thirdly, I have not determined any issues, either for myself or the jury. I have simply indicated a way in which the evidence might come out in relation to the events prior to (and indeed after) the commencement date of 6 April 2008. That does not seem to me to be anything other than the typical sort of case management discussion held in advance of any criminal trial. It is a long way from being a preparatory hearing.[53]As I said at the outset, this is a very sad case. It is obviously serious, because it involves the unexpected death of Mrs Cappuccini. But I do not consider that the case itself is particularly complex. The medical evidence is, I think, no more difficult to assimilate than the medical evidence in, say, a baby shaking case. A trial of four weeks is not, sadly, particularly long, certainly not for a case like this.[54]In those circumstances, I do not consider that Section 29 applies either.[55]Thus, for the reasons that I have set out, I do not designate this as a preparatory hearing under the 1996 Act. I do, however, consider that it has been extremely useful.

Cited in 1 later judgment