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*1411 Regina v Blaue

Court of Appeal
9 July 1975

[1975] 1 W.L.R. 1411

Lawton L.J., Thompson and Shaw JJ.
1975 June 23; July 16
Crime—Homicide—Causation—Stab wound penetrating lung—Blood transfusion necessary to save
life—Refusal on ground of religious beliefs—Whether stab wound operative cause of death—Whether
test of reasonableness applicable
The defendant stabbed a young woman of 18 with a knife, which penetrated her lung. She was
taken to hospital where she was told that a blood transfusion and surgery were necessary to
save her life. She refused to have a blood transfusion on the ground that it was contrary to her
religious beliefs as *1412 a Jehovah's Witness and she died the following day. The cause of
death was bleeding into the pleural cavity, which would not have been fatal if she had accepted
medical treatment when advised to do so. The defendant was charged with murder. The judge, in
directing the jury on the issue of causation, said that they might think that they had little option
but to find that the stab wounds were still an operative or substantial cause of death when the
victim died. The defendant was convicted of manslaughter on the ground of diminished
responsibility.
On appeal against conviction: —
Held, dismissing the appeal, that the death of the victim was caused by loss of blood as a result
of the stab wounds inflicted by the defendant and the fact that she had refused a blood
transfusion did not break the causal connection between the stabbing and the death; that, since
the criminal law did not require the victim to mitigate her injuries, and since an assailant was not
entitled to claim that the victim's refusal of medical treatment because of her religious beliefs was
unreasonable, the jury were entitled to find that the stab wounds were an operative or substantial
cause of death.
Dicta of Maule J. in Reg. v. Holland (1841) 2 Mood. & R. 351, 352 and Lord Parker C.J. in Reg.
v. Smith [1959] 2 Q.B. 35, 42, C.-M.A.C. applied.
Reg. v. Jordan (1956) 40 Cr.App.R. 152, C.C.A. distinguished.

The following cases are referred to in the judgment of the court:

Reg. v. Holland (1841) 2 Mood. & R. 351.

Reg. v. Jordan (1956) 40 Cr.App.R. 152, C.C.A.

Reg. v. Smith [1959] 2 Q.R. 35; [1959] 2 W.L.R. 623; [1959] 2 All E.R. 193, C.-M.A.C.

Steele v. Robert George & Co. (1937) Ltd [1942] A.C. 497; [1942] 1 All E.R. 447, H.L.(E.).
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The following additional cases were cited in argument:

Imperial Chemical Industries Ltd. v. Shatwell [1965] A.C. 656; [1964] 3 W.L.R. 329; [1964] 2
All E.R. 999, H.L.(E.).

Oropesa, The [1943] P. 32; [1943] 1 All E.R. 211, C.A.

Rew's Case (1662) Kel. 26.

Rex v. McIntyre (1847) 2 Cox C.C. 379.

APPEAL against conviction.

On October 17, 1974, at Teesside Crown Court (Mocatta J.), the defendant, Ronald Konrad
Blaue, was acquitted of murder but convicted of manslaughter on the ground of diminished
responsibility (count 1), wounding with intent to do grievous bodily harm (count 2) and indecent
assault (count 3). He pleaded guilty to indecently assaulting two other women (counts 4 and 5)
and was sentenced to life imprisonment on counts 1 and 2 and to concurrent sentences of 12
months' imprisonment on counts 3, 4 and 5. He appealed against conviction on the ground that
the judge had misdirected the jury on causation since the girl's refusal to have a blood
transfusion had broken the chain of causation between the stabbing and her death.
The facts are stated in the judgment.
Representation

James Comyn Q.C. and Robin Stewart for the defendant.

Donald Herrod Q.C. and David Fenwick for the Crown.

Cur. adv. vult.

*1413

LAWTON L.J.
July 16. read the following judgment of the court. On October 17, 1974, at Teesside Crown Court
after a trial before Mocatta J. the defendant was acquitted of the murder of Jacolyn Woodhead
but was convicted of her manslaughter on the ground of diminished responsibility (count 1). He
was also convicted of wounding her with intent to do her grievous bodily harm (count 2) and of
indecently assaulting her (count 3). He pleaded guilty to indecently assaulting two other women
(counts 4 and 5). He was sentenced to life imprisonment on counts 1 and 2 and to concurrent
sentences of 12 months' imprisonment on counts 3, 4 and 5.
The defendant appeals with the leave of this court against his conviction on count 1 and, if his
appeal is successful, he applies for leave to appeal against his sentence on count 2.
The victim was aged 18. She was a Jehovah's Witness. She professed the tenets of that sect
and lived her life by them. During the late afternoon of May 3, 1974, the defendant came into her
house and asked her for sexual intercourse. She refused. He then attacked her with a knife
inflicting four serious wounds. One pierced her lung. The defendant ran away. She staggered out
into the road. She collapsed outside a neighbour's house. An ambulance took her to hospital,
where she arrived at about 7.30 p.m. Soon after she was admitted to the intensive care ward. At
about 8.30 p.m. she was examined by the surgical registrar who quickly decided that serious
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injury had been caused which would require surgery. As she had lost a lot of blood, before there
could be an operation there would have to be a blood transfusion. As soon as the girl appreciated
that the surgeon was thinking of organising a blood transfusion for her, she said that she should
not be given one and that she would not have one. To have one, she said, would be contrary to
her religious beliefs as a Jehovah's Witness. She was told that if she did not have a blood
transfusion she would die. She said that she did not care if she did die. She was asked to
acknowledge in writing that she had refused to have a blood transfusion under any
circumstances. She did so. The prosecution admitted at the trial that had she had a blood
transfusion when advised to have one she would not have died. She did so at 12.45 a.m. the
next day. The evidence called by the prosecution proved that at all relevant times she was
conscious and decided as she did deliberately, and knowing what the consequences of her
decision would be. In his final speech to the jury, Mr. Herrod for the prosecution accepted that
her refusal to have a blood transfusion was a cause of her death. The prosecution did not
challenge the defence evidence that the defendant was suffering from diminished responsibility.
Towards the end of the trial and before the summing up started counsel on both sides made
submissions as to how the case should be put to the jury. Counsel then appearing for the
defendant invited the judge to direct the jury to acquit the defendant generally on the count of
murder. His argument was that her refusal to have a blood transfusion had broken the chain of
causation between the stabbing and her death. As an alternative he submitted that the jury
should be left to decide whether the chain of causation had been broken. Mr. Herrod submitted
that the judge should direct the jury to convict, because no facts were in issue and when the law
was applied to the facts there was only one possible verdict, namely, manslaughter by reason of
diminished responsibility.
When the judge came to direct the jury on this issue he did so by telling them that they should
apply their common sense. He then went on to tell them they would get some help from the
cases to which counsel had referred *1414 in their speeches. He reminded them of what Lord
Parker C. J. had said in Reg. v. Smith [1959] 2 Q.B. 35, 42 and what Maule J. had said 133 years
before in Reg. v. Holland (1841) 2 Mood. & R. 351, 352. He placed particular reliance on what
Maule J. had said. The jury, he said, might find it “most material and most helpful.” He continued:

“This is one of those relatively rare cases, you may think, with very little option open to
you but to reach the conclusion that was reached by your predecessors as members of
the jury in Reg. v. Holland, namely, ‘yes' to the question of causation that the stab was
still, at the time of this girl's death, the operative cause of death — or a substantial
cause of death. However, that is a matter for you to determine after you have withdrawn
to consider your verdict.”

Mr. Comyn has criticised that direction on three grounds: first, because Reg. v. Holland should no
longer be considered good law; secondly, because Reg. v. Smith, when rightly understood, does
envisage the possibility of unreasonable conduct on the part of the victim breaking the chain of
causation; and thirdly, because the judge in reality directed the jury to find causation proved
although he used words which seemed to leave the issue open for them to decide.
In Reg. v. Holland, 2 Mood. & R. 351, the defendant in the course of a violent assault, had injured
one of his victim's fingers. A surgeon had advised amputation because of the danger to life
through complications developing. The advice was rejected. A fortnight later the victim died of
lockjaw. Maule J. said, at p. 352: “the real question is, whether in the end the wound inflicted by
the prisoner was the cause of death.” That distinguished judge left the jury to decide that
question as did the judge in this case. They had to decide it as juries always do, by pooling their
experience of life and using their common sense. They would not have been handicapped by a
lack of training in dialectic or moral theology.
Maule J.'s direction to the jury reflected the common law's answer to the problem. He who
inflicted an injury which resulted in death could not excuse himself by pleading that his victim
could have avoided death by taking greater care of himself: see Hale's Pleas of the Crown (1800
ed.), pp. 427–428. The common law in Sir Matthew Hale's time probably was in line with
contemporary concepts of ethics. A man who did a wrongful act was deemed morally responsible
for the natural and probable consequences of that act. Mr. Comyn asked us to remember that
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since Sir Matthew Hale's day the rigour of the law relating to homicide has been eased in favour
of the accused. It has been — but this has come about through the development of the concept
of intent, not by reason of a different view of causation. Well known practitioner's textbooks, such
as Halsbury's Laws of England, 3rd ed., vol. 10 (1955), p. 706 and Russell on Crime, 12th ed.
(1964), vol. 1, p. 30 continue to reflect the common law approach. Textbooks intended for
students or as studies in jurisprudence have queried the common law rule: see Hart and Honore,
Causation in Law (1959), pp. 320–321 and Smith and Hogan, Criminal Law, 3rd ed. (1973), p.
214.
There have been two cases in recent years which have some bearing upon this topic: Reg. v.
Jordan (1956) 40 Cr.App.R. 152 and Reg. v. Smith [1959] 2 Q.B. 35. In Reg. v. Jordan the Court
of Criminal Appeal, after conviction, admitted some medical evidence which went to prove that
the cause of death was not the blow relied upon by the prosecution but abnormal medical
treatment after admission to hospital. This case has *1415 been criticised but it was probably
rightly decided on its facts. Before the abnormal treatment started the injury had almost healed.
We share Lord Parker C.J.'s opinion that Reg. v. Jordan should be regarded as a case decided
on its own special facts and not as an authority relaxing the common law approach to causation.
In Reg. v. Smith [1959] 2 Q.B. 35 the man who had been stabbed would probably not have died
but for a series of mishap. These mishaps were said to have broken the chain of causation. Lord
Parker C.J., in the course of his judgment, commented as follows, at p. 42:

“It seems to the court that if at the time of death the original wound is still an operating
cause and a substantial cause, then the death can properly be said to be the result of
the wound, albeit that some other cause of death is also operating. Only if it can be said
that the original wounding is merely the setting in which another cause operates can it
be said that the death does not flow from the wound. Putting it another way, only if the
second cause is so overwhelming as to make the original wound merely part of the
history can it be said that the death does not flow from the wound. “

The physical cause of death in this case was the bleeding into the pleural cavity arising from the
penetration of the lung. This had not been brought about by any decision made by the deceased
but by the stab wound.
Mr. Comyn tried to overcome this line of reasoning by submitting that the jury should have been
directed that if they thought the deceased's decision not to have a blood transfusion was an
unreasonable one, then the chain of causation would have been broken. At once the question
arises — reasonable by whose standards? Those of Jehovah's Witnesses? Humanists? Roman
Catholics? Protestants of Anglo-Saxon descent? The man an the Clapham omnibus? But he
might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine (2
Maccabees, ch. 6, vv. 18–31) or of Sir Thomas More who, unlike nearly all his contemporaries,
was unwilling to accept Henry VIII as Head of the Church in England. Those brought up in the
Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused
their own deaths.
As was pointed out to Mr. Comyn in the course of argument, two cases, each raising the same
issue of reasonableness because of religious beliefs, could produce different verdicts depending
on where the cases were tried. A jury drawn from Preston, sometimes said to be the most
Catholic town in England, might have different views about martyrdom to one drawn from the
inner suburbs of London. Mr. Comyn accepted that this might be so: it was, he said, inherent in
trial by jury. It is not inherent in the common law as expounded by Sir Matthew Hale and Maule J.
It has long been the policy of the law that those who use violence on other people must take their
victims as they find them. This in our judgment means the whole man, not just the physical man.
It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited
him from accepting certain kinds of treatment were unreasonable. The question for decision is
what caused her death. The answer is the stab wound. The fact that the victim refused to stop
this end coming about did not break the casual connection between the act and death.
If a victim's personal representatives claim compensation for his death the concept of
foreseeability can operate in favour of the wrongdoer *1416 in the assessment of such
compensation: the wrongdoer is entitled to expect his victim to mitigate his damage by accepting
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treatment of a normal kind: sec Steele v. R. George & Co. (1937) Ltd. [1942] A.C. 497. As Mr.
Herrod pointed out, the criminal law is concerned with the maintenance of law and order and the
protection of the public generally. A policy of the common law applicable to the settlement of
tortious liability between subjects may not be, and in our judgment is not, appropriate for the
criminal law.
The issue of the cause of death in a trial for either murder or manslaughter is one of fact for the
jury to decide. But if, as in this case, there is no conflict of evidence and all the jury has to do is to
apply the law to the admitted facts, the judge is entitled to tell the jury what the result of that
application will be. In this case the judge would have been entitled to have told the jury that the
defendant's stab wound was an operative cause of death. The appeal fails.
J. W.

Representation

Solicitors: Swinburne & Jackson, Durham; Director of Public Prosecutions.

Appeal dismissed. Application to certify point of law of general public importance involved refused.
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