2 Q.B. QUEEN'S BENCH DIVISION.

35

physical or colloquial sense. Having Viscount H a i l s h a m ' s weighty C. A.

authority for the proposition t h a t " premises " is an ambiguous ^959
word which m a y be used in alternative senses, it seems to me to
M &J S
be perfectly open to us to say t h a t " premises " in the present PROPERTIES
LTD
context m u s t have been intended by Parliament to be understood -
in its popular or physical sense. Unless this is so, I find it WHITE.
difficult to make sense of the proviso. For these reasons, I agree
t h a t the appeal m u s t be allowed.
Appeal allowed.

Solicitors: A. A. Seller & Co.; Scott, Winter & Go.

M. M. H .

B E G I N A v. SMITH. C.-M. A. C.
1959
Criminal Law—Evidence—Confession—Inducement—Inadmissible con- March 25.
fession by private soldier to sergeant-major—Subsequent confession
after caution—Whether original inducement spent. (Pj a r
Criminal Law—Homicide—Causation—Incorrect treatment before death Streatfeild
—Whether break in chain of causation. Hinehdiffe JJ.
Causation.
The appellant, a private soldier, was charged with the murder
by stabbing of a soldier of another regiment during a barrack-room
. fight. Immediately after the fight the appellant's regimental
sergeant-major put his company on parade and indicated that the
men would be kept there until he learnt who had been involved in
the fighting. At the trial the judge-advocate admitted in evidence
a statement made by the appellant to the sergeant-major at that
parade, confessing to the stabbing. Evidence was also given of a
subsequent confession made the following day to a sergeant of the
Special Investigation Branch after a caution had been adminis­
tered. The deceased man had received two bayonet wounds, one
of which pierced the lung and caused haemorrhage. While being
carried to the medical reception station for treatment he was
dropped twice. At the reception station he was given treatment
which was subsequently shown to have been incorrect.
The appellant was convicted and appealed on the grounds, inter
alia, that the alleged confessions were wrongly admitted in evidence
and that the court was not properly directed as to causation: —
Held, (1) that the confession obtained by the regimental sergeant-
major was tainted by threat or inducement and was inadmissible.
(2) That if the threat or promise under which the first state­
ment was made still persisted when the second statement was made,
then that statement also was inadmissible; only if the time-limit
between the two statements, the circumstances existing at the time
36
QUEEN'S BENCH DIVISION. [1959]
C.-M. A. C. and the caution were such that it could be said that the original
lq _ ( . threat or inducement had been dissipated could the second statement
be admitted as a voluntary statement; in the present case the effect
EBQINA of the original inducement was spent and the second statement was
i>. admissible.
SMITH. D i c t a of T a u n t o n j i n Bex v Meynell (1834) 2 Lew.C.C. 122,
123; Patteson J. in Beg. v. Sherrington (1838) 2 Lew.C.C. 123,
124; Whiteside C.J. in Beg. v. Doherty (1874) 13 Cox C.C. 23, 24;
Denman J. in Beg. v. Bosa Bue (1876) 13 Cox C.C. 209, 210
applied.
(3) That, as at the time of death the original wound was still
an operating and a substantial cause, death could properly be said
to be the result of the wound, albeit that some other cause also
operated.
Dictum of Lord Wright in The Oropesa [1943] P . 32, 39; [1943]
1 All E.R. 211; Minister of Pensions v. Chennell [1947] K.B. 250;
[1946] 2 All E.R. 719 applied.
Beg. v. Jordan (1956) 40 Cr.App.R. 152 distinguished.

APPEAL against conviction.

The appellant, Thomas Joseph Smith, a private soldier in
the King's Eegiment, took part in a fight between a company of
, his regiment and a company of the Gloucestershire Kegiment,
who were sharing barracks in Germany, on the night of April 13,
1958. Three m e n of the Gloueesters received stab wounds. One
of them subsequently died.
Immediately after the fight a regimental sergeant-major of
the King's Eegiment p u t his company on parade and indicated
t h a t it was his intention to keep t h e m there until he learnt who
had been involved in the fighting. Nobody stepped forward, and
h e then addressed each m a n personally. H e was told by the
appellant t h a t h e had been in bed at the relevant time. The
sergeant-major t h e n said, in effect, t h a t he would not leave until
he got an answer, and the appellant stepped forward and con­
fessed to the stabbing, which he said he had done with a bayonet
which was by a bed in the barrack-room. The next day a sergeant
from the Special Investigation Branch, having cautioned the
appellant, referred to his earlier confession, and the appellant
then made a statement admitting the stabbing.
The appellant was convicted of murder a t a general court-
martial and was sentenced to imprisonment for life. H e appealed
on the ground t h a t the confessions were wrongly admitted in
evidence.

Boderic Bowen Q.G. and H. K. Woolf for the appellant. On

the question of the admissibility of evidence relating to the first
 37
2 Q.B. QUEEN'S BENCH DIVISION.

confession, the position of a soldier on parade is analogous to C.-M. A. C.

that of a man in custody; he is not entitled to leave the parade. 1959
The relationship of the individuals concerned is also relevant: in ~
this case one was a regimental sergeant-major and the other was „,
a young soldier in his regiment. In all the circumstances it was SMITH.
wrong of the judge-advocate to rule that the admission made at
the parade was a voluntary admission and that evidence relating
to it was admissible. [Counsel was stopped on this point.]
On the assumption that the first admission was inadmissible,
the whole proceedings were tainted by reason of what the regi­
mental sergeant-major said at the parade. No objection was
made at the trial in relation to the second admission, because the
judge-advocate ruled that the first confession was admissible, but
at the outset of the interview during which the second admission
was made, the sergeant of the Special Investigation Branch faced
the accused with the admission he had made to his regimental
sergeant-major. The object of a caution is to place a man in
the position of knowing that he is not obliged to say anything.
In this case the court has to be satisfied that the effect of the
threat made by the regimental sergeant-major had been dissipated
before the second admission was made, and that the fear which
brought about the first admission no longer persisted in any way:
Rex v. Meynell1; Reg. v. Sherrington2; Rex v. Knight and
Thayre 3; Reg. v. Doherty *; Reg. v. Rosa Rue.5 It is impossible
to say that once the parade was dismissed and the man was put
in custody the inducement or threat had gone. The continuing
inducement was that the accused had been ordered to confess by
his regimental sergeant-major, who was in authority over him,
and that order remained.
On the question of causation, the court must be satisfied that
the treatment subsequent to the wounding was normal. In this
case there was abnormal treatment. Causation is a question of
fact, and whether there has been a break in the chain of causation
is a matter for the court. The issue should have been put to
the court by the judge-advocate on the basis of Reg. v. Jordan.6
The court must be satisfied that the death was a natural conse­
quence and was the sole consequence of the wound and flowed
directly from it. First it must be considered whether immediately
after the wounding the deceased man might have survived, and
1
(1834) 2 Lew.C.C. 122. •» (1874) 13 Cox C.C. 23.
2 (1838) 2 Lew.C.C. 123. s (1876) 13 Cox C.C. 209.
3 (1905) 21 T.L.K. 310; 20 Cox e (ig 5 6 ) 40 Cr.App.E. 152.
C.C. 711.
38
QUEEN'S BENCH DIVISION. [1959]
C.-M. A. C. if his chances of survival were removed by the treatment he was
1959 given, death did not result from the wound. The function of
T the judge-advocate in a case of this kind is to give a careful
fl. summing-up, pointing out that the court m u s t be satisfied that
SMITH. there was no break in the chain of causation, giving some
guidance on what constitutes a break, and then indicating the
evidence on which this issue should be determined; in this case
the judge-advocate should have said in effect that after the wound
had been sustained there was a possibility that the haemorrhage
would stop, and he should have posed the question whether that
possibility was removed by what amounted to abnormal treat­
ment. The directions of the judge-advocate were inadequate on
this point. [Counsel referred to Reg. v . Ledger7 and Thabo
Meli v. The Queen.*]
E. Garth Moore for the Crown. On the question of evidence
relating to the first admission, if this was inadmissible it was so
presumably because the accused was enforced by a threat. The
observations of the regimental sergeant-major were not directed
to the accused alone, but to a whole company and were mixed
up to a great extent with exhortation. The sanction for not
answering (merely to keep some people out of bed and on parade
longer) was trivial; it was almost an abuse of language to call it
a threat in circumstances such as these. Beg. v. Harris-Rivett9
showed what exercised the minds of the court in applying the
Judges' Eules in military matters.
On the question of causation, if what happened was a natural,
probable and foreseeable consequence of what was done, anything
coming in between was not truly a novus actus interveniens:
Haynes v. Harwood.10 Even the wrongful act of a third party,
if it is something which should reasonably be anticipated, will
not break the chain of causation. Applying the general principle
to the facts of this case, if a person is stabbed in the middle of
a general affray it must be expected that he is not going to be
treated in the best possible way at the most immediate moment.
[Counsel referred to The Oropesa.11]

LORD PARKER C.J. stated the facts and continued: The court
is quite clear that while there was nothing improper in the action

i (1862) 2 P. & F. 857. i° [1935] 1 K.B. 146; 51 T.L.E.

s [1954] 1 W.L.E. 228; [1954] 1 100.
All E.E. 373. » [1943] P. 32; [1943] 1 All E.E.
9 [1956] 1 Q.B. 220; [1955] 3 211.
W.L.E. 823; [1955] 3 All E.E. 567.
2 Q.B. QUEEN'S BENCH DIVISION. 39

taken by the regimental sergeant-major, the evidence of what C.-M. A. C.

took place was clearly inadmissible at the prisoner's trial. What lg5 g
the sergeant-major did might well have been a very useful course
of action in order to enable further inquiries to be made, but „
the court is satisfied that if the only evidence against the SMITH.
prisoner was a confession obtained in those circumstances, it
would be quite inadmissible at his trial. It has always been
a fundamental principle of the courts, and something quite apart
from the Judges' Rules of Practice, that a prisoner's confession
outside the court is only admissible if it is voluntary. In
deciding whether an admission is voluntary the court has been
at pains to hold that even the most gentle, if I may put it in
that way, threats or slight inducements will taint a confession.
To say to all those on parade, " You are staying here and are
" not going to bed until one of you owns up " is in the view
of this court clearly a threat. It might also, I suppose, be looked
upon as an inducement in that the converse is true, " If one of
" you will come forward and own up, the rest of you can go
" to bed " ; but whichever way one looks at it, the court is of
opinion that while the action was perfectly proper and a useful
start no doubt to inquiries, evidence in regard thereto was clearly
inadmissible.
The matter, however, does not rest there because at about
7.30 the next morning Sergeant Ellis from the Special Investiga­
tion Branch came down to make inquiries, and he, when he first
saw the appellant, gave him the usual caution. He, however,
went on to refer then to what had happened the night before.
Apparently after administering the caution, he said, " There was
" a disturbance last night in a barrack-room in Polish Barracks.
" I understand that after the disturbance you admitted to your
" R.S.M. that you had been involved and that you stabbed
" three men of the Gloucestershire Regiment." Apparently
Sergeant Ellis by then had been told that three men were
involved. The prisoner replied: " Yes, I am not denying it. I
" stabbed three of them all right." He was then asked if he
wished to make a statement. He said: " Y e s . " A written
caution was then made which the prisoner signed, and there
followed a statement which I need not read, but which admitted
that he had stabbed about three of them altogether with a
bayonet which he found on the floor of the room.
It is urged by Mr. Bowen on his behalf that the original
taint in the confession given to the sergeant-major really per­
sisted in these later confessions, both oral and in writing, and
40
QUEEN'S BENCH DIVISION. [1959]
C.-M. A. C. in particular he points to the fact, as I have said, that Sergeant
^59 Ellis at the outset referred 'to what had taken place or what
was said to have taken place the evening before. Mr. Bowen
e- also referred us to a number of cases. I t is unnecessary to refer
SMITH. to them in detail. He starts with Rex v. Meynellx in 1834,
where in regard to a second confession Taunton J. said 2 : " I
" am clearly of opinion that it is not receivable; it being im-
" possible to say that it was not induced by the promise which
" the constable made to her in the morning." In other words,
he was saying that the second statement was inadmissible in
that a promise made when the first statement was given was
still in operation' when the second statement was given. To the
same effect was the opinion of Patteson J. in Sherrington's case,3
where he said: '' There ought to be strong evidence to show
" that the impression under which the first confession was made,
" was afterwards removed, before the second confession can be
" received. I am of opinion, in this case, that the prisoner must
" be considered to have made the second confession under the
" same influence as he made the first; the interval of time being
" too short to allow of the supposition that it was the result of
" reflection and voluntary determination." I should observe that
in neither of those cases was a caution administered before the
second statement was obtained.
He also refers to an Irish case of Reg. v. Doherty,* where
Whiteside C.J., in ruling on the admissibility of the second state­
ment, said *: " The judges have held that it must be shown that
" the prisoner thoroughly understood that he could expect no
" gain from a confession. The subsequent caution must be shown
" to have had the effect of removing all such expectation from
" t h e prisoner's mind." Again, in Reg. v. Rosa Rue, Denman
J. said 6 : " There are cases which hold that a confession once
" rejected on the ground that it was made under an inducement
" does not become admissible merely from the fact that it was
" again made to some other person who has not held out an
" inducement, the inducement being deemed to be a continuing
" one. But I am not at this moment aware of any case in which
" it has been held that, where the person who held out the
" inducement is absent, then a confession made to a third party
" is not admissible, no fresh inducement having been held out.
" The general principle is clear, that if it is made out to the

i (1834) 2 Lew.C.C. 122. * (1874) 13 Cox C.C. 23.

= Ibid. 123. s ibM. 24.
» (1838) 2 Lew.C.C. 123, 124. « (1876) 13 Cox C.C. 209, 210.
 41
2 Q.B. QUEEN'S BENCH DIVISION.

" satisfaction of the judge that the statement was not made C.-M. A. C.
" voluntarily, it is not admissible. It is not merely a question X959
" a s to whom the confession is made or when it is made; but ~~ ■
" i t is a matter in which you have to get at the mind of the „.
" prisoner, and see whether or not it is probable that the con- SMITH.
" fession was made voluntarily, in the proper sense of the word."
Having consulted Kelly L.C.B., Denman J. held on the facts
of that case that the second statement was so connected with
the original inducement as to be inadmissible.
The court thinks that the principle to be deduced from the
cases is really this: that if the threat or promise under which
the first statement was made still persists when the second
statement is made, then it is inadmissible. Only if the time-
limit between the two statements, the circumstances existing at
the time and the caution are such that it can be said that the
original threat or inducement has been dissipated can the second
statement be admitted as a voluntary statement.
In the present case the judge-advocate never had to consider
or rule on this second statement. Having admitted the first
statement, there was no question on that basis but that the
second statement must be also admissible. Accordingly, he
never had to rule on the question of admissibility. He never
had to exercise any discretion in the matter, and there was no
occasion for his leaving it to the court as to the value or weight
to be attached to the confession. This court, however, is of
the clear opinion that the second statement was admissible. No
doubt the opening reference to what it was said he had said to
the regimental sergeant-major put the appellant in a difficulty.
No doubt it was introduced by Sergeant Ellis in the hope that
thereby he might get a continued confession; but it is clear that
the effect of any original inducement or threat under which the
first statement was made had been dissipated. Quite apart from
the fact that the caution was given and given twice, some nine
hours had elapsed and the whole circumstances had changed.
The parade had ended. The rest of the company had gone to
bed. The effect of the threat or the inducement was spent. On
those grounds this court has come to the conclusion that the
oral and written statements made to Sergeant Ellis were clearly
admissible.
The second ground concerns a question of causation. The
deceased man in fact received two bayonet wounds, one in the
arm and one in the back. The one in the back, unknown to
anybody, had pierced the lung and caused haemorrhage. There
42
QUEEN'S BENCH DIVISION. [1959]
C.-M. A. C. followed a series of unfortunate occurrences. A fellow-member
1959 of his company tried to carry him to the medical reception
~ station. On the way he tripped over a wire and dropped the
„, deceased man. He picked him up again, went a little farther,
SMITH. a n ( j fe]} apparently a second time, causing the deceased man to
be dropped onto the ground. Thereafter he did not try a third
time but went for help, and ultimately the deceased man was
brought into the reception station. There, the medical officer,
Captain Mill ward, and his orderly were trying to cope with a
number of other cases, two serious stabbings and some minor
injuries, and it is clear that they did not appreciate the serious­
ness of the deceased man's condition or exactly what had
happened. A transfusion of saline solution was attempted and
failed. When his breathing seemed impaired he was given
oxygen and artificial respiration was applied, and in fact he died
after he had been in the station about an hour, which was about
two hours after the original stabbing. It is now known that
having regard to the injuries which the man had in fact suffered,
his lung being pierced, the treatment that he was given was
thoroughly bad and might well have affected his chances of
recovery. There was evidence that there is a tendency for a
wound of this sort to heal and for the haemorrhage to stop. No
doubt his being dropped on the ground and having artificial
respiration applied would halt or at any rate impede the chances
of healing. Further, there were no facilities whatsoever for blood
transfusion, which would have been the best possible treatment.
There was evidence that if he had received immediate and
different treatment, he might not have died. Indeed, had facili­
ties for blood transfusion been available and been administered,
Dr. Camps, who gave evidence for the defence, said that his
chances of recovery were as high as 75 per cent.
In these circumstances Mr. Bowen urges that not only was a
careful summing-up required but that a correct direction to the
court would have been that they must be satisfied that the death
of Private Creed was a natural consequence and the sole conse­
quence of the wound sustained by him and flowed directly from
it. If there was, says Mr. Bowen, any other cause, whether
resulting from negligence or not, if, as he contends here, some­
thing happened which impeded the chance of the deceased
recovering, then the death did not result from the wound. The
court is quite unable to accept that contention. 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
 43
2 Q.B. QUEEN'S BENCH DIVISION.

properly be said to be the result of the wound, albeit t h a t some C.-M. A. C.

other cause of death is also operating. Only if it can be said t h a t 1959
the original wounding is merely the setting in which another cause -
operates can it be said t h a t the death does not result from the v.
wound. P u t t i n g it in another way, only if the second cause is SMITH.
so overwhelming as to make the original wound merely part of
the history can it be said t h a t the death does not flow from the
wound.
There are a number of cases in the law of contract and tort
on these m a t t e r s of causation, and it is always difficult to find a
form of words when directing a jury or, as here, a court which
will convey in simple language the principle of causation. It
seems to the court enough for this purpose to refer to one passage
in the judgment of Lord Wright in The Oropesa, where he said 7 :
" To break t h e chain of causation it m u s t be shown t h a t there is
" something which I will call ultroneous, something unwarrant-
" able, a new cause which disturbs the sequence of events,
" something which can be described as either unreasonable or
" extraneous or extrinsic." To much the same effect was a
judgment on the question of causation given by Denning L . J . in
Minister oj Pensions v . Chennell.*
Mr. Bowen placed great reliance on a case decided in this
court of Reg. v . Jordan, and in particular on a passage in the
headnote which s a y s 9 : " . . . t h a t death resulting from any
" normal t r e a t m e n t employed to deal with a felonious injury m a y
" be regarded as caused by the felonious injury, b u t t h a t the
" same principle does not apply where the t r e a t m e n t employed is
" a b n o r m a l . " Beading those words into the present case, Mr.
Bowen says t h a t the t r e a t m e n t t h a t this unfortunate m a n
received from the m o m e n t t h a t he was struck to the time of his
death was abnormal. The court is satisfied t h a t Jordan's case
was a very particular case depending upon its exact facts. I t
incidentally arose in this court on the grant of an application to
call further evidence, and leave having been obtained, two well-
known medical experts gave evidence t h a t in their opinion death
had not been caused by the stabbing but by the introduction of
terramycin after the deceased had shown t h a t he was intolerant
to it, and by t h e intravenous introduction of abnormal quantities
of liquid. I t also appears t h a t at the time when t h a t was done
the stab wound which had penetrated the intestine in two places
had mainly healed. I n those circumstances the court felt bound
' [1943] P . 32, 39. 0 (1956) 40 Cr.App.E. 152.
8
[1947] K.B. 250.
44
QUEEN'S BENCH DIVISION. [1959]
C.-M. A. C. to quash the conviction because they could not say t h a t a
1959 reasonable jury properly directed would not have been able on
t h a t to say t h a t there had been a break in the chain of causation;
„ the court could only uphold the conviction in t h a t case if they
SMITH. were satisfied t h a t no reasonable jury could have come to t h a t
conclusion.
I n the present case it is true t h a t the judge-advocate did not
in his summing-up go into the refinements of causation. Indeed,
in the opinion of this court he was probably wise to refrain from
doing so. H e did leave the broad question to the court whether
they were satisfied t h a t the wound had caused the death in the
sense t h a t the death flowed from the wound, albeit t h a t the treat­
m e n t he received was in the light of after-knowledge a bad thing.
I n the opinion of this court t h a t was on the facts of the case a
perfectly adequate summing-up on causation; I say " on the facts
" o f the case " because, in the opinion of the court, they can
only lead to one conclusion: a m a n is stabbed in the back, his
lung is pierced and haemorrhage results; two hours later he dies
of haemorrhage from t h a t wound; in the interval there is no time
for a careful examination, and the t r e a t m e n t given turns out in
the light of subsequent knowledge to have been inappropriate and,
indeed, harmful. I n those circumstances no reasonable jury or
court could, properly directed, in our view possibly come to any
other conclusion t h a n t h a t the death resulted from the original
wound. Accordingly, the court dismisses this appeal.

Appeal dismissed.

Solicitors: Registrar, Courts-Martial Appeal; Director, Army

Legal Services.
J. D. P.

C. A. UNION N A T I O N A L E D E S C O O P E E A T I V E S A G E I C O L E S
D E C E B E A L E S v. E O B E E T C A T T E E A L L & CO. L T D .
I95y
Mar. 13.
[1958 M. No. 1107.]
Lord Evershed
M.R. and
earc
.t 1' Arbitration, — Award — Enforcement — Foreign award — Unenforceable
locally without order of local court—Whether " final "—Arbitration
Act, 1950 (14 Geo. 6, c. 27), ss. 26, 36, 37.
By an agreement in French made in Paris, dated August 31,
1956, the appellants agreed to sell to the respondents a quantity of