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R v Misra & Srivastava [2005] 1 Cr App R 328 Court of Appeal

The two appellant doctors were convicted of gross negligence manslaughter following the death of a post-operative patient under their care. The patient developed an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms. The patient died of toxic shock as a result of the untreated infection. The appellants sought to challenge the test of gross negligence manslaughter laid down in Adomako (ie. whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury's opinion to a criminal act or omission.)The appellants argued that this test was circular and required the jury to set their own level of criminality which essentially should be a question of law. The appellants raised Articles 6 & 7 of the European Convention of Human Rights in that the uncertainty created by the Adomako test meant they had been deprived of the right to a fair trial and the uncertainty also meant that at the time the action was committed it was not possible to determine whether the actions were criminal.

Held:

Conviction upheld. The Adomako test did not infringe Convention Rights.

Lord Justice Judge:

"On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant's negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.

In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.

Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed. "
 
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