R v Misra and Srivastava  1 Cr App R 328
Whether the elements of gross negligence manslaughter were sufficiently certain.
Two doctors were convicted of gross negligence manslaughters when their post-operative patient became infected with a staphylococcus aureus infection that was left untreated. The infection led to a build-up of poison, which culminated in toxic shock syndrome from which he died. The doctors were responsible for the post-operative care of the patient during the period at which the infection began. It was alleged that each was grossly negligent in respect of the medical treatment provided to the patient, such as not recognising classic symptoms of the infection, declining to take culture samples and not following up with relevant tests.
The defendants were convicted of gross negligence manslaughter. On appeal, the defendants raised the defence that the test for gross negligence put to the jury was circular and uncertain, and thus fails to meet the standards of certainty required under Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [‘ECHR’].
The test of gross negligence manslaughter is clear and involves no uncertainty. The elements of the crime have been defined in R. v Adomako (1994) as requiring (1) death resulting from a negligent breach of the duty of care owed by the defendant to the deceased, (2) the victim was exposed to risk of death due to this negligent breach, and (3) the circumstances were so reprehensible to amount to gross negligence. The jury’s determination of whether the defendants’ negligence amounted to ‘gross negligence’ is a question of fact, not of law. Although there is some element of circularity, this does not result in an uncertainty which contravenes Article 7 of the ECHR. Accordingly, the Court dismissed the appeals.