Can suicide turn GBH into a murder?
Berlinah Wallace has been cleared of murdering her former partner in a sulphuric acid attack which caused injuries which led him to end his own life. A jury at Bristol Crown Court was asked to decide whether Ms Wallace was guilty of murder where Mr Van Dongen had chosen to end his own life by euthanasia because of his catastrophic but not fatal injuries.
Ms Wallace was accused of dousing Mr Van Dongen with sulphuric acid while he slept, shouting “if I can’t have you no one can”. The incident took place in September 2015. She had recently discovered her former partner had entered into a new relationship. The injuries sustained by Mr Van Dongen included paralysis from the neck down, loss of a leg and the loss of the majority of his sight. As a result of the attack Mr Van Dongen was left in excruciating pain and required round-the-clock care for the rest of his life. He subsequently underwent elective euthanasia at a clinic in Switzerland in January 2017.
To establish legal causation, it must be shown that the defendant’s act was an ‘operative and substantial’ cause. There cannot be an ‘intervening act’ breaking the chain of causation. At the initial trial in November 2017, following the conclusion of the prosecution's case the trial judge Mrs Justice May heard 'half-time submissions' from the defence team on this issue. May J ruled that there was "no case to answer" on the murder count. She was not satisfied that it was safe for the jury to find that the subsequent suicide of Mr Van Dongen did not break the chain of causation. May J explained:-
"It seems to me that if one is to accord proper respect to the decision and actions of persons with free will acting autonomously (whether as a victim or third-party intervener) then the legal result of their free and voluntary choice and/or positive act to end their own or another's life must as I see it be to break with what had gone before, disconnecting both the choice to die and the death itself from the circumstances generating the occasion for it. When Mark van Dongen made the brave, desperate, profoundly sad decision that his life with such appalling disability was so burdensome that he preferred to leave it, and when the doctors opened the door for him to go and ushered him through, his choice and their actions each disconnected his death, in law, from the culpable activity which had caused his dreadful injuries. In my view, a jury properly directed, could reach no other conclusion and for that reason I have decided that the case of murder must be withdrawn from them."
Acknowledging it was not any easy decision, the judge granted the prosecution permission to appeal her terminating ruling. Accordingly, the matter was considered by the Court of Appeal with a bench comprising Lady Justice Sharp, Mrs Justice Spencer and Mrs Justice Carr.
The Court of Appeal noted the facts were straightforward, but that the legal position was complicated. It reviewed the relevant law on causation in detail. Ultimately, it was not persuaded that the allegation of murder could not be put to the jury. Sharp LJ explained:-
"58. On the facts of this case it could not sensibly be disputed (or such was the prosecution case) that Mr van Dongen's unbearable physical and psychological suffering at the time of his death resulted from the dreadful injuries inflicted on him by the defendant. Nor could it be disputed that but for those injuries and that unbearable suffering, Mr van Dongen would not have requested euthanasia nor would or could his doctors have (lawfully) carried it out. The connection between the inflicted injuries and death was therefore a direct and discernible one. It was not blurred, for example, by any pre-existing suicidal tendency on the part of Mr van Dongen, or by any other physical or mental condition he may have had before the injuries were inflicted. Further, though Mr van Dongen was not expected to die in the near future, he remained profoundly damaged by the injuries inflicted on him by the defendant, and continued to suffer severe physical and psychological effects (or sequelae) from those injuries up to the moment of his death. In the circumstances, his position could not realistically be equated with that of someone in a more conventional case, a stabbing for example, whose wounds had healed or nearly healed (with no other effects) - at least without standing reality on its head.
59. It may be thought that a jury could properly conclude on these very special and particular facts that Mr van Dongen's decision to ask for euthanasia and the Belgian doctors' acts in carrying it out resulted from the injuries that the defendant had inflicted upon him. Further, that the jury could properly reach such a conclusion despite the separation in time between the events at either end of the putative chain of causation (the defendant's conduct at one end and Mr van Dongen's death at the other) having regard to the continuing effect of his injuries and to the evidence that he decided to ask for euthanasia when he was told after his arrival in Belgium that his condition of complete paralysis was permanent ("the straw that breaks the camel's back").
60. The intervening acts of Mr van Dongen and the doctors were not, on these facts, random extraneous events, or acts unconnected with the fault element of the defendant's conduct. They were very closely, indeed inextricably, bound up with it. Equally, the injuries and their sequelae were not a random result of the defendant's conduct: on the evidence of Mr van Dongen, the defendant planned to inflict permanent and horrific injuries on him and succeeded ("If I can't have you, no-one else will.
61. Looked at in this way, Mr van Dongen's death, his request to the doctors, and the act of euthanasia itself carried out in accordance with his wishes, were not discrete acts or events independent of the defendant's conduct, nor were they voluntary, if by this is meant they were the product of the sort of free and unfettered volition presupposed by the novus actus rule. Instead they were a direct response to the inflicted injuries and to the circumstances created by them for which the defendant was responsible. If the question is then asked whether, on a common sense view, the defendant's conduct merely set the stage for Mr van Dongen's death, or was instrumental in bringing it about, we consider the jury could properly answer that question in the prosecution's favour."
A full copy of the Court of Appeal's judgment Wallace, R v  EWCA Crim 690 can be found here.
The Court of Appeal ordered a retrial, with the following suggested directions for the jury:-
"Deliberate and unlawful act
1. Are you sure that the defendant deliberately threw acid over Mr van Dongen?
2. Are you sure that at the time of the attack the defendant intended to kill Mr van Dongen or at least cause him serious bodily harm?
3. In order to convict the defendant on count 1 you must be sure that the defendant's unlawful act of throwing acid over Mr van Dongen caused his death.
This is a question of fact that you should answer using your collective common sense. It is common ground that but for the injuries caused by the acid attack, Mr van Dongen would not have undergone voluntary euthanasia. If you are sure this is the case, go on to ask yourself:
(a) Are you sure that the defendant's unlawful act of throwing acid over Mr van Dongen was a significant and operating cause of death? The injuries do not need to be the only cause of death but they must play more than a minimal part in causing Mr van Dongen's death.
Consider all the circumstances, including the nature and extent of Mr van Dongen's injuries, the passage of time, intervening events, the involvement of the doctors in carrying out the voluntary euthanasia at Mr van Dongen's request, what Mr van Dongen was told and what he said.
If your answer is yes, proceed to question 3(b). If you are not sure, your verdict on count 1 will be not guilty.
(b) Are you sure that at the time of the acid attack it was reasonably foreseeable that the defendant would commit suicide as a result of his injuries? In answering this question consider all the circumstances, including the nature of the attack, what the defendant did and said at the time and whether or not Mr van Dongen's decision to undergo voluntary euthanasia fell within the range of responses which might have been expected from a victim in his situation. If your answer is yes, your verdict on count 1 will be guilty. If your answer is no, your verdict on count 1 will be not guilty."
At the conclusion of the retrial, the jury of 10 men and two women took 15 hours and 30 minutes to reach their decisions. The jury returned not guilty verdicts in relation to the murder (and a manslaughter) count, but unanimously convicted Ms Wallace of throwing a corrosive substance with intent contrary to section 29 Offences against the Person Act 1861. The retrial judge, Mrs Justice Nicola Davies, sentenced the defendant to life imprisonment with a tariff of 12 years. This means that she could not be considered for parole for 12 years.
Although the jury ultimately acquitted the defendant of murder, the Court of Appeal's ruling that this case should be placed before a jury in the first place is potentially groundbreaking. If this approach is adopted in the future, it could mean that cases of grievous bodily harm that resulted in serious but not fatal injuries would subsequently become murder trials if the victim later committed suicide, or opted for euthanasia, due to their injuries. This is despite the fact that both suicide and euthanasia are illegal in this country.
One could imagine a situation where an individual attacks another by forcing a broken bottle into their face - intending to cause grievous bodily harm. The victim suffers substantial facial disfigurement, but no life threatening injuries. Ordinarily the perpetrator would be prosecuted for grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861. This carries a maximum sentence of life imprisonment, but the sentencing guidelines range from three to 16' years imprisonment. If convicted, the defendant would be eligible for early release on parole, and normally automatically released halfway through their sentence. However, say the victim in this example suffers depression as a result of his facial disfigurement and subsequently commits suicide six months later. There is a possibility that the defendant would then be prosecuted for murder and if convicted face a mandatory life sentence, with a minimum term of at least 15 years to be served. In terms of causation, there is no principled legal difference between injuries by acid, a glass bottle or a knife. The Court of Appeal's decision could have wide-ranging effects on all cases of GBH with intent where the victim subsequently commits suicide or opts for euthanasia in a foreign country, regardless of the means of inflicting the injury.
To the layperson the issue may seem overlay technical. The bottle attack in the above example could have caused the victim's immediate death in any event and murder would be made out if the defendant intended to cause serious injury. Whilst murder carries a stigma, the judge's sentencing powers may not be significantly different.
The Court of Appeal's decision is binding on lower courts unless that case can be distinguished on the facts.
Brett Wilson LLP solicitors are experienced in advising and representing those being prosecuted for grievous bodily harm and homicide offences. Click here to see how we can assist you.
Articles are intended as an introduction to the topic and do not constitute legal advice.