R v Misra [2004] EWCA Crim 2375

Two senior house officers were convicted of gross negligence manslaughter after their patient died from untreated toxic shock syndrome following knee surgery. The Court of Appeal upheld the convictions, confirming that gross negligence manslaughter is sufficiently certain and compatible with the ECHR.

Facts

Sean Phillips, a healthy 31-year-old man, underwent routine surgery to repair his patella tendon at Southampton General Hospital on 23 June 2000. His operation wound became infected with staphylococcus aureus, leading to toxic shock syndrome (TSST1) from which he died on 27 June 2000. The appellants, Dr Amit Misra and Dr Rajeev Srivastava, were senior house officers responsible for his post-operative care between the evening of 23 June and the afternoon of 25 June.

Throughout this period, the deceased exhibited classic signs of infection: raised temperature and pulse, and lowered blood pressure. Blood test results, available on the hospital computer from 9.47pm on the Saturday, were never accessed or acted upon by either appellant. Neither doctor sought help from senior colleagues, and despite suggestions from nursing staff that further treatment was needed, no appropriate action was taken. Both appellants were convicted of manslaughter by gross negligence before Langley J at Winchester Crown Court on 11 April 2003 and sentenced to 18 months’ imprisonment, suspended for two years.

Issues

The trial judge certified that the question of the compliance of the crime of gross negligence manslaughter with the ECHR was one of some importance. The principal issues were:

• Whether the offence of gross negligence manslaughter, as formulated in R v Adomako [1995] 1 AC 171, is impermissibly uncertain and circular, contrary to Article 7 ECHR.
• Whether the offence contravenes Article 6 ECHR because the jury is not required to give reasons.
• Whether, following R v G and Another [2004] 1 AC 1034, the offence should be replaced by manslaughter based on recklessness requiring proof of mens rea.
• Whether the trial judge was correct to reject a submission of no case to answer on causation.
• Whether fresh statistical evidence from Professor Campbell should be admitted under s.23 of the Criminal Appeal Act 1968.

Arguments

For the Appellants

Mr Gledhill QC (for Misra) and Mr Kennedy (for Srivastava) submitted that gross negligence manslaughter lacks certainty because it requires juries to decide whether the defendant’s conduct amounts to a crime, which is circular. They argued this fails the requirement in Article 7 ECHR that criminal offences be clearly defined. They further contended that Article 6 was engaged because juries provide no reasoned decision on what is effectively a question of law. Relying on R v G, they argued that serious offences require mens rea and that gross negligence alone was insufficient.

For the Crown

Mr Mott QC and Mr Perry (for the Attorney General) maintained that the ingredients of the offence had been authoritatively settled in Adomako and were sufficiently certain. The prosecution relied on expert evidence from Dr Lowes, Professor Forrest and Dr Wilcox, who indicated that the appellants’ failures were elementary and fell far below the standard expected of senior house officers, and that with appropriate treatment the deceased would probably have survived.

Judgment

Certainty and Article 7

The Court of Appeal, delivered by Judge LJ, held that Article 7 ECHR is primarily concerned with preventing retrospective criminalisation and requires only sufficient, not absolute, certainty. Drawing on Sunday Times v United Kingdom, Wingrove v United Kingdom, and English authorities including R v Goldstein, the Court held that the requirement is that the law be formulated with sufficient precision to enable a citizen, with appropriate advice, to foresee the consequences of his conduct.

The Court drew a critical distinction between uncertainty about the ingredients of an offence and uncertainty about how a jury will decide whether those ingredients are established on the facts. The former is impermissible; the latter is unavoidable and unobjectionable. Comparable jury questions arise routinely, such as dishonesty and driving standards for causing death by dangerous driving.

Circularity

Addressing Lord Mackay’s acknowledgment of an element of circularity in Adomako, the Court held that the reference to whether conduct is ‘criminal’ serves to emphasise to the jury that the negligence must be of a very high degree, well beyond that giving rise to civil liability. The jury is not defining the offence for itself on some unprincipled basis; rather, it decides whether the defendant’s behaviour was grossly negligent and therefore criminal, which is a question of fact.

Risk of Death

The Court clarified that the relevant risk for gross negligence manslaughter is the risk of death, not merely injury or injury to health. It approved the approach in R v Singh (Gurphal) and Lewin v CPS.

Mens Rea and R v G

The Court rejected the argument that R v G required reconsideration of Adomako, noting that Lord Bingham had confined his reasoning to the Criminal Damage Act 1971. Referring to Lord Reid in Sweet v Parsley, the Court held that gross negligence itself provides the necessary element of culpability or fault, so the offence is not one of strict liability.

Article 6

The Court held that it is well established in Strasbourg jurisprudence that juries need not give reasons (citing Saric v Denmark), and that the indictment and summing up made the basis of conviction sufficiently clear.

Causation and Fresh Evidence

The Court held that causation was properly a jury question and the submission of no case was correctly rejected. The application to admit fresh statistical evidence from Professor Campbell was refused: there was no reasonable explanation for failing to adduce such evidence at trial, and in any event the evidence added little to the material already before the jury and did not undermine the clinical assessments of the Crown’s experts.

Implications

The decision authoritatively confirms that gross negligence manslaughter as formulated in Adomako remains good law and is compatible with Articles 6 and 7 of the ECHR. The ingredients of the offence are: (i) a duty of care owed by the defendant to the deceased; (ii) a negligent breach of that duty; (iii) which exposed the deceased to a serious and obvious risk of death; (iv) causing death; and (v) circumstances so reprehensible as to amount to gross negligence.

The judgment clarifies that the relevant risk is a risk of death, not merely of injury or ill health, which imposes an important limit on the offence. It also confirms that gross negligence supplies the culpability requirement, so the absence of any conventional mens rea does not undermine the offence’s compatibility with fundamental principles.

The decision is of particular importance to medical practitioners and others who owe duties of care in life-threatening contexts, as it confirms that elementary failings that expose patients to obvious risks of death can attract criminal liability. It also reinforces the general principle that juries may properly resolve fact-sensitive questions couched in evaluative terms without offending the certainty requirement. The Court’s treatment of the fresh evidence application underlines the strict approach taken to section 23 of the Criminal Appeal Act 1968 where a tactical decision has been made at trial not to call available expert evidence.

Verdict: The appeals against conviction were dismissed. The Court of Appeal held that gross negligence manslaughter, as defined in R v Adomako, is compatible with Articles 6 and 7 of the ECHR, and refused the application to admit fresh statistical evidence from Professor Campbell.

Source: R v Misra [2004] EWCA Crim 2375