Cornish & Anor, R v

Factual and Procedural Background

On 9 October 2012, a female patient ("the Deceased") died while under the care of the second defendant ("the Trust"). The death was unexpected and raised concerns regarding the adequacy of anaesthetic care following an Examination Under Anaesthetic (EUA). The Deceased was slow to recover from anaesthesia, with ventilation initially managed by an anaesthetist ("Anaesthetist A") assisted briefly by a senior anaesthetist ("Anaesthetist B"). More senior anaesthetists later intervened, reintubated the patient, but despite efforts, the Deceased suffered cardiac arrest and died that afternoon.

The family of the Deceased instructed legal representation and an expert was appointed to investigate the roles of Anaesthetist B, Anaesthetist A, and subsequently the Trust. The inquest was adjourned in February 2014 due to police investigations. Anaesthetist A left the jurisdiction and did not participate in proceedings. Criminal charges were brought against Anaesthetist B (gross negligence manslaughter) and the Trust (corporate manslaughter).

The prosecution decision was made in April 2015, with proceedings commencing shortly after. The case was transferred from Maidstone Crown Court to Inner London Crown Court. Pre-trial hearings addressed issues including venue, case particulars, and retrospective legal matters. Expert reports were exchanged and experts met multiple times before trial.

The trial commenced in January 2016. After the Crown closed its case, both defendants applied for rulings of no case to answer. The court upheld these submissions, and the jury returned verdicts of not guilty. The Trust subsequently applied for an order for the Crown to pay their costs, amounting to nearly £500,000. The court heard submissions on this application in April 2016.

Legal Issues Presented

1. Whether the Crown's decision to prosecute the Trust for corporate manslaughter and Anaesthetist B for gross negligence manslaughter was improper under section 19 of the Prosecution of Offences Act 1985 and related regulations, thereby justifying an order for costs against the Crown.
2. Whether the evidence presented by the Crown was sufficient to establish a case to answer against each defendant under the relevant criminal standards, including the tests for gross negligence manslaughter and corporate manslaughter.
3. The interpretation and application of the legal standards for costs orders in criminal proceedings, particularly the threshold for "improper" conduct by the prosecution as established in precedent cases.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the evidence and legal standards applicable to the prosecution of both defendants. In respect of Anaesthetist B, the court found that the evidence of breach of duty was either non-existent or tenuous. The use of bag and mask ventilation was standard and unchallenged, no warnings or alarms indicated inadequate care during the relevant period, and the expert evidence did not establish that immediate reintubation was required. The court noted that the arrival of a more senior anaesthetist who also did not immediately reintubate undermined the Crown's argument that Anaesthetist B breached his duty.

Regarding gross negligence, the court concluded that the evidence did not demonstrate a breach so reprehensible as to constitute a crime. The clinical decisions were complex and involved judgment calls, none of which were shown to be obviously or seriously negligent. Causation was also lacking, as the expert evidence did not establish that any alleged failure by Anaesthetist B caused or significantly contributed to the death.

For the Trust, the court rejected arguments that the case failed due to lack of identification of senior management. It found sufficient evidence that senior management roles were adequately identified. However, the court found no evidence of breach in relation to appointment or appraisal of the anaesthetists. The only potentially non-tenuous breach was unclear supervision arrangements on the day of death, but even this did not amount to a gross breach or causally contribute to the death.

The court extensively reviewed the expert evidence, particularly the reliability and conduct of the Crown’s expert. While the expert was criticized for being overly confident and unconvincing under cross-examination, the court did not find that reliance on this expert amounted to improper conduct by the prosecution. The Crown’s decision to prosecute was based on expert evidence that was not plainly wrong or unreliable at the time.

In applying the legal principles governing costs orders under section 19 of the Prosecution of Offences Act 1985 and related regulations, the court emphasised that a prosecution failing does not in itself constitute improper conduct. The threshold for such a finding is high and requires clear, stark error by the prosecution. The court found no such error here. It rejected submissions that the Trust’s failure to seek dismissal or its status as an NHS Trust were relevant to the costs application.

Ultimately, the court determined that the prosecution’s decision to bring and continue the case was a difficult judgment call made in good faith, and that no improper act or omission occurred that would justify a costs order against the Crown.

Holding and Implications

The court’s final ruling was to DISMISS the Trust's application for an order that the Crown pay their costs under section 19 of the Prosecution of Offences Act 1985.

This decision means that the Trust is not entitled to recover its legal costs from the Crown Prosecution Service despite the prosecution failing. The ruling confirms the high threshold for prosecutorial impropriety necessary to justify a costs order and reinforces that the failure of a prosecution, absent clear and stark error, does not warrant such an order. No new precedent was established; the decision follows established principles emphasizing prosecutorial discretion and the rarity of costs orders against the Crown.