*328 R. v Misra and Srivastava [2004] EWCA Crim 2375 [2005] 1 Cr. App. R. 21
( Lord Justice Judge , Mr Justice Treacy and Mr Justice Bean ):
Causation; Clinical negligence; Fresh evidence; Legal certainty; Manslaughter by gross negligence;Mens rea; No punishment without law
HOMICIDE Manslaughter Gross negligence manslaughter—Whether ingredients of offence sufficiently certain—Whetherjury required to define offence—Whether exposure to risk of injury rather than deathsufficient—Whether offence requiring mens rea
H2 The defendants were convicted of gross negligence manslaughter. On their appeals againstconviction the defendants submitted; first, that the charge of gross negligence manslaughterrequired the jury to determine whether a defendant's conduct should be characterised as grossnegligence, which meant that the jury had to define the offence for itself so that the offence asdefined failed to meet the standard of certainty required by the Convention for the Protection ofHuman Rights and Fundamental Freedoms ; and, secondly, that the offence contravened theessential principle that some element of mens rea was a necessary ingredient of all seriouscriminal offences .
H3 Held, dismissing the appeals, that the need for the criminal law to be predictable and certain had long been understood at common law. The incorporation of the Convention, although providing a salutary reminder, had not effected a significant extension or change to that principle. The requirement was for sufficient, not absolute certainty, and there was a distinction between uncertainty about the necessary ingredients of a criminal offence, and uncertainty in the process by which it was decided whether the required ingredients of the offence had been established in an individual case. In gross negligence manslaughter the offence required, first, death resulting from a breach of duty; secondly, that in negligent breach of that duty, the victim was exposed by the defendant to the risk of death. It was clearly established that that requirement was not sufficiently satisfied by a risk of bodily injury or injury to health. Thirdly, it was required that the circumstances were so reprehensible as to amount to gross negligence. The burden on the prosecution went beyond proof of mere negligence giving rise to civil liability. The negligence had to be so bad, that if all the other ingredients of the offence were proved, it amounted to a crime and was punishable as such. It was the requirement for gross negligence which provided the necessary element of culpability and therefore the mens rea for the offence. The question for the jury *329
therefore was not whether the defendant's negligence was gross and whether
additionally it was a crime, but whether the defendant's behaviour was grossly negligent andconsequently a crime. That was a question of fact rather than law. The application of the principlemight involve an element of uncertainty, but the offence itself was clearly defined. Accordingly,the offence neither contravened principles at common law nor was it incompatible with theConvention (post, paras 34, 37, 48, 52, 57, 60, 62, 63, 64, 89).
H4 R. v Adomako (1994) 99 Cr.App.R. 362, [1995] 1 A.C. 171, HL, applied .
H5 (For manslaughter by gross negligence, see Archbold 2005, para.19–108 and following.)
Appeals against conviction
H6 On April 11, 2003 in the Crown Court at Winchester (Langley J.) the appellants, Amit NathMisra and Rajeev Srivastava, were convicted of manslaughter by gross negligence. They wereeach sentenced to 18 months' imprisonment, suspended for two years. The judge certified thecase fit for appeal.
H7 The facts and grounds of appeal appear in the judgment of the Court.
H8 Representation
Michael Gledhill Q.C. and John McNally (assigned by the Registrar of Criminal Appeals) forMisra.
Andrew Kennedy (assigned by the Registrar of Criminal Appeals) for Srivastava.
Philip Mott Q.C. and Hywel Jenkins (instructed by the Crown Prosecution Service,Headquarters) for the Crown.
David Perry (instructed by the Treasury Solicitor) intervening, for the Attorney General.
handed down the judgment of the Court.
1 These are appeals by Amit Misra and Rajeev Srivastava against their convictions on April 11,2003 on separate counts of manslaughter in the Crown Court at Winchester before Langley J. and a jury. Each was sentenced to 18 months' imprisonment, suspended for two years. Afterconviction, the judge certified: “the question of compliance of the crime of ‘gross negligencemanslaughter’ with the European Convention on Human Rights is one of some importance”, andthat accordingly the case was fit for appeal.
2 The victim of manslaughter was Sean Phillips. He underwent unremarkable surgery to repair his patella tendon at Southampton General Hospital on June 23, 2000. Unfortunately he became infected with staphylococcus aureus. The condition was untreated. There was a gradual build up of poison within his body, which culminated in toxic shock syndrome (TSST1) from which he died on June 27. The appellants were senior house officers involved in the post-operative care of the deceased during the period beginning on the evening of June 23 *330 until the afternoon of June 25. It was alleged that each was grossly negligent in respect of the medical treatment he provided to the deceased and that these failures caused the death. Each was convicted of manslaughter by gross negligence.
3 The particulars of offence against each appellant, as amended, alleged in identical terms thathe unlawfully killed Sean Philips:
(1) as a doctor he owed a duty of care to Sean Phillips as his patient;
(2) in breach of that duty of care he failed to make any or any adequate diagnosis of thenature of Sean Phillips' illness which he should have identified as a severe infectionrequiring aggressive supportive therapy and antibiotics, and to take steps to ensure thathe received appropriate treatment;
(3) that breach of duty amounted to gross negligence;
(4) that negligence was a substantial cause of the death of Sean Phillips.”
4 The prosecution case against the appellants did not arise from their failure to diagnose theprecise condition from which the deceased was suffering. Given its rarity, of itself this may wellnot have amounted to negligence at all. Instead the Crown relied on the appellants' failure toappreciate that their patient was seriously ill. He was showing classic signs of infection: raisedtemperature and pulse rate, and lowered blood pressure. These conditions were severe, andpersistent, and were or should have been obvious, if only from a glance at the relevant charts. It
was equally obvious that the patient needed urgent treatment. And, notwithstanding suggestionsby other members of the medical team on more than one occasion that further treatment wasneeded, none, or none that was appropriate, was provided. Blood results were available from thehospital computer from 9.47 on the Saturday evening. They were never obtained, nor actedupon, nor did either appellant make any enquiry whatever about the results. They did not seekhelp from senior colleagues. In short, infection was not diagnosed when it should have been, andnot properly treated until it was far too late. The mistakes made by the appellants wereelementary. Accordingly, they were negligent, and grossly so, and in consequence Sean Phillipsdied of toxic shock syndrome.
5 We must briefly summarise the main facts. While on a visit to London, Sean Phillips, a 31 yearold, healthy man from Southampton, injured his patella tendon. He required an operation, whichwas carried out on Friday June 23, 2000 at Southampton General Hospital. The skin was cutabove the knee. A metal wire was inserted. The wound was then stitched and the leg placed in aback slab plaster. No post-operative complications were anticipated. After a period in therecovery ward, the deceased was admitted to an orthopaedic ward (Ward Four).
6 The appellants were senior house officers, and part of the team involved in the post-operative care of the deceased. Dr Srivastava was responsible for the deceased during the night shifts of June 23–24 and June 24–25. Dr Misra was on call during the day shifts, between 8.00 am and 5.00 pm on June 24 and again on June 25. Throughout Saturday, June 24 and Sunday, June 25 the *331
deceased, appeared to be alert and well-orientated and in possession of all his
faculties. Unfortunately, the operation wound became infected with staphylococcus aureus.
7 After the deceased's admission to Ward Four, the immediate concern for his welfare focussedon the management of his post-operative pain. Appropriate pain killers were provided for him,and Dr Srivastava prescribed voltarol, administered as a suppository. In the early hours ofSaturday, June 24 it was observed that the deceased's temperature and pulse had bothincreased markedly, when simultaneously his blood pressure was falling. He also vomited andsuffered bouts of offensive diarrhoea.
8 At about midday on June 24, the deceased's temperature was recorded at 38.3°C, his pulsemeasured at 145, and his blood pressure was 89/55. Dr Misra was contacted. He saw thepatient. He prescribed intravenous fluids and agreed that oxygen should be provided. Despite amarginal improvement, the patient's condition remained abnormal. At trial Dr Misra said that heascribed the temperature rise to the trauma of the operation and the low blood pressure and highpulse to the diarrhoea and vomiting, which would have caused dehydration. He prescribedappropriate treatment, stopping the voltarol and ordering an alternative anti-emetic. He alsoasked that a stool sample should be taken if the diarrhoea continued. In the meantime, thepatient was to be kept under observation.
9 Later that afternoon Dr Misra was asked to review the patient. His temperature was still inexcess of 38, his pulse was running at about 130, and his blood pressure was unchanged, andlow. The Crown's case was that the sister on duty suggested that blood cultures should be taken. She thought that this would be a normal precursor to antibiotics. She said that Dr Misradisagreed. No cultures were taken. In his interview, Dr Misra said that he could not recall this partof the conversation and he doubted whether it had happened at all. If blood cultures had beenordered, it would have taken 48 hours for the results to become available. Therefore the absenceof blood cultures did not contribute to the death: however the fact that they were not taken itselfprovided an indication that proper and full attention was not being paid to the deceased'scondition. Dr Misra went off duty at 5.00 pm.
10 Dr Gandopadhyhay assumed responsibility for the patient. At 7.00 pm, at the request of theward sister, he reviewed the patient. Despite continuing alertness, the patient was in badcondition. Blood tests, to ascertain the blood count, and for consideration of cultures andsensitivities, were then taken. They were sent for analysis, with results normally available acouple of hours or so later. This doctor saw no indications of infection at the site of the wound,and in evidence he said that he discounted the possibility that the patient's condition wasattributable to any such infections. Pending the results of the blood tests, his provisional viewwas that the patient was suffering from gastro-intestinal infection. He made appropriate notesabout the patient, the first of the doctors to do so, ending his note with the words “review results”. As he was labelling the blood samples, Dr Srivastava came on duty. Dr Gandopadhyhaydescribed how he passed on his provisional view about the patient's condition to Dr Srivastava,
and explained what he was doing and why, and that he had asked for the results of these blood *332 tests to be checked, and for the nurses to contact Dr Srivastava if they were abnormal. Dr Srivastava in evidence agreed with this account of the conversation, and said that he worked on the basis that if anything abnormal was shown by the tests, he would be told of it by the nurses.
11 The blood tests were available on the hospital computer by 9.47 that evening. They showed arise in creatinine levels, together with a high level of protein indicative of an acute inflammatorycondition. In short, there was evidence of kidney damage and possible infection. These resultswere not seen by Dr Srivastava that night. He said that he had not been given a password toaccess the computer. He did not ask to see the results. They were not accessed by Dr Misra onthe following day, nor indeed by anyone until late on the Sunday evening by when it was too late. In other words, the blood tests ordered by Dr Gandopadhyhay were entirely disregarded.
12 During the night of June 24–25, at 11.00 pm, observations on the patient showed that histemperature was running at 39.1. His pulse rate was 135, and his blood pressure 90/50. Atmidnight his blood pressure declined further. The nurses summoned Dr Srivastava. To increaseblood pressure he prescribed a plasma volume expander. This was started at 12.10 am. Furtherepisodes of diarrhoea were observed, and a staff nurse recorded in the notes, “to be reviewed. Doctor is aware.” She recorded further abnormalities. Dr Srivastava again saw the patient at12.50. He advised additional plasma volume expander, and continuation of observation. Theevidence from nursing staff suggested that they asked whether anything else could be done forthe patient. Dr Srivastava responded that if the systolic blood pressure fell below 70 further actionshould be taken by calling in the registrar or the medical senior house officer on duty.
13 In interview Dr Srivastava said he could not recollect any such conversation, and that it wouldbe unlikely for him to have spoken in these terms in the context of a figure as 70, for a patientwith a base line of 100. This would be very low. In evidence, he said that he had to accept thatconversation happened, commenting that he had spoken to one of the nurses, who must havepassed it on to the other. Dr Srivastava also wrote in the patient's notes, “continue monitoring”. He misread the patient's fluid chart, noting a urine output at nearly twice the actual amount of 250ml. In evidence he described this as a “silly mistake”. According to the evidence, however, “silly”or not, the mistake was not insignificant. Dr Srivastava also said that the patient remained fineand well, cheerfully asking why he was under such constant observation. He acknowledged thathe did not look at the observation chart. This, too, was an admitted, further mistake. The reviewended at about 1.00 am.
14 At 4.30 am a member of the nursing team noted that the patient's blood pressure was “still low and tachycardic”. At 6.00 am, Dr Srivastava saw the patient again. His temperature had reduced to 38.1, and his blood pressure increased to 100/52. His pulse rate remained high. At the end of her shift one of the members of the nursing staff described her concerns about the patient. In her experience his deterioration was unusual. Dr Srivastava went off duty, describing in evidence that he thought that his patient was not very ill and had improved. *333 He said nothing about his condition before leaving, and did not participate in the ward round.
15 Dr Misra came on duty on Sunday morning. At the end of his ward round, at about 11.00 am,the ward sister asked him to review the patient, who was now complaining of a burning sensationin the knee. The knee was dry. No discharge or infection was apparent. And indeed, thepathologist confirmed that this remained the case at post mortem. However, the patient was stillsuffering from diarrhoea. His blood pressure was 88/47, pulse 148, and his temperature 39.2°C. Dr Misra decided that the fluid regime should be increased, in order aggressively to increaseblood pressure. The fluid input rate was to be doubled. He said that he would have read thenotes made by Dr Gandopadhyhay about blood tests. He knew that a request for them had beenmade. However, he did not see any document containing the results, and he did not recollectasking for them. He said that the practice was for the laboratory to flag up anything abnormal. Accordingly, he assumed or expected that they were unremarkable.
16 The nursing handover took place at 1.30 pm. The nurse going off duty at 1.30 pm wasconcerned that her patient was not improving and the nurse who took over from her wasextremely concerned that her patient's condition had deteriorated since she had last been onduty some 22 hours earlier. Dr Misra's assistance was sought. Although it was not then known,on the basis of the expert medical evidence called at trial the patient was passing, or had alreadypassed, the point of no return, after which his death was inevitable. It is therefore unnecessary toprovide any narrative of the subsequent events in this unhappy story.
17 The history of events between the time when the patient was admitted to Ward Four and themid-afternoon of the Sunday was closely examined by expert witnesses called by the Crown. DrLowes is the microbiologist in the public health laboratory used by Southampton GeneralHospital. In his judgment the observations of the patient showed “severe sepsis”, to be treatedwith broad spectrum antibiotics until a clear alternative diagnosis was available.
18 Professor Forrest is a professor of forensic toxicology at Sheffield University. In his opinionthe observations at midday on June 24 were attributable to a single obvious cause, infection. These observations should have been treated very seriously indeed by an orthopaedic seniorhouse officer. “They should have triggered investigations by blood cultures and blood tests tocheck for kidney function, and by consulting colleagues as well as examination of the patient”. Healso considered that if the patient continued to be ill, and the blood tests were not received, thedoctor was obliged to “chase up for the results”. He criticised the failure to react to the severity ofthe deceased's illness as shown by the repeated observations and his poor urine output, whichhe said he would expect a final year student to recognise. His examination of the clinical notes onthe patient led him to express the opinion that the quality of the care provided by the appellants“did not even begin to approach the standard to be expected of them”.
19 Professor Forrest gave evidence on the issue of causation. Although he was prepared to accept that even with proper treatment the patient might have died, *334 he would confidently have expected him to leave the hospital alive if the nature of his condition had properly been recognised and appropriately treated.
20 Dr Wilcox is a consultant, and the head of medico-microbiology at Leeds Training Hospitals. His responsibilities extend to the examination of medical students. He said that if he wereexamining a third or fourth year medical student, and postulated the observations of thedeceased's condition following the operation on his knee, and the student failed to diagnoseinfection, he would have thought of failing the student on that basis alone. He suggested thatevery mother knew what a high temperature might mean, and if this were combined with a highpulse rate and low blood pressure, every doctor should be able to identify that the patient wasseriously ill.
21 Dr Wilcox dealt with causation. He believed that if the deceased had been prescribedaggressive fluids and a broad spectrum antibiotic, he stood a very high chance of survival. It wasvery uncommon for death to result from TSST1. Furthermore, the particular patient had remainedalert and orientated, which suggested that, at the outset, his body was responding well. Hisoverall view was that the patient would have survived, if provided with appropriate treatment bylunchtime or the early afternoon on Sunday. When cross-examined he indicated that he was notsure that the deceased would have survived with proper medical treatment, but he believed onthe balance of probability that he would have done. In re-examination he said that if appropriatetreatment had been given at 12.00 on the Saturday, he was as certain as one could be that hewould have survived. We shall later examine a distinct aspect of the evidence on causation,arising from material of a statistical nature, when we consider an application to admit furtherevidence under s.23 of the Criminal Appeal Act 1968 . For present purposes, however, we notethat statistical material did not feature as a significant aspect of the Crown's case before the jury.
22 At the close of the prosecution case it was submitted to the judge that there was no case foreither appellant to answer. In part, the submission depended on legal argument about the ambit,if any, of the offence of manslaughter by gross negligence. We shall address this issue later inthe judgment, for the moment simply recording our indebtedness to Langley J. for his carefuljudgment on the issue. A distinct feature of the submission, however, was that the case shouldbe withdrawn from the jury on the basis that the Crown's case had failed on causation. The judgerejected the submission. His decision is criticised, essentially on the basis that the deceased mayhave died from TSST1 in any event, or from the developing consequences of the conditionbefore negligence could be established against either appellant. In our judgment the submissionthat there was no case to answer on the causation issue was untenable. We have narrated abrief summary of the evidence, including the expert medical evidence. The causation issue wasentirely for the jury. If the submission had been upheld, the judge would have usurped itsfunction. His decision was right. We refuse the application for leave to appeal on this ground.
23 Both appellants gave evidence. Each accepted that, looking at the matter with hindsight, mistakes were made, but they genuinely did not realise how ill their patient was. His condition was very rare indeed. Each had done his best, acting *335 in good faith. Moreover, all those
involved in the care of the patient had worked on the same erroneous basis. Even if the mistakesmade individually were to be regarded as negligent, their extent did not justify the conclusion thatthe negligence was gross.
24 Dr Wilson, a consultant microbiologist at University College London, gave evidence on behalfof Dr Misra. He thought that by 12.00 on Saturday, the observations revealed a plainly abnormalsituation. He explained that the toxins were causing leakage from the blood vessels and the gut,and that this caused the blood pressure to drop and the heart rate to rise. Low blood pressurewould then result in damage to organs such as the kidney, liver and pancreas and the lining ofthe gut. The patient needed far more fluids, to bring up his blood pressure and to protect his vitalorgans until the toxins could be stopped by removing the source of infection. The creatinine levelsuggested that by 8.00 on the Saturday evening significant kidney function had already been lost. He thought that the time when the point of no return was reached was a matter of speculation. The chances of survival were much better on the Saturday than on the Sunday, but he could notsay with any certainty that the patient would have survived. The judge summarised his evidence:“there was a finite and significant risk of death in any patient having toxic shock syndrome quiteregardless of treatment … he could not postulate when in his particular case he probably passedthe point of no return, but again he would place it earlier than … Sunday lunchtime … he agreedthat if he had been treated appropriately on Saturday afternoon then one was probably looking ata 3–5% level of risk of death.”
25 For present purposes the critical passages in the summing up read:
“… duty and breach of duty — … will be the starting point to establish civil liability to paydamages. But as you would expect, and is the law, the prosecution must make you sureof something much more, and much more serious, than that before a person can beconvicted of the crime of manslaughter. That is why you see in the indictment the words‘gross negligence’. Mistakes, even very serious mistakes, and errors of judgment, evenvery serious errors of judgment, and the like, are nowhere near enough for a crime asserious as manslaughter to be committed. If you do conclude that you are sure thateither or both of the defendants have been in breach of their duty of care in theirtreatment of Sean, you must therefore go on to consider the nature of that carelessnessor negligence, as you find it to be.
Over the years, the courts have used a number of expressions to describe this vital element of the crime, but the key is that it must be gross in the perhaps slightly old-fashioned sense now of the use of that word. So in this case, when you are considering the conduct of each doctor, I think you will find it most helpful to concentrate on whether or not the prosecution has made you sure that the conduct of whichever one you are considering, in all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonably competent and careful senior house officer that it was something, in your assessment, truly exceptionally bad, and which showed such an indifference to an obviously *336 serious risk to the life of Sean Phillips and such a departure from the standard to be expected as to amount, in your judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter.”
26 As already recorded, the jury convicted both defendants. It was argued before us as anindependent ground for granting leave to appeal, that the verdicts were perverse. We have onlyrecorded this argument for the purpose of completeness. Our view can be expressed in a fewwords. After a fair and balanced summing up, these verdicts were plainly open to the jury. Theperversity argument is unmeritorious, and we shall summarily dismiss it.
27 We can now address the appellants' submission on the question certified by Langley J.
28 Mr Michael Gledhill on behalf of Dr Misra submitted that manslaughter by gross negligence isan offence which lacks certainty. As presently understood, it requires the trial judge to direct thejury that the defendant should be convicted of manslaughter by gross negligence if they aresatisfied that his conduct was “criminal”. Indeed, the effect of his argument was that it is aseparate additional ingredient of this offence that the jury have to decide whether the defendant'sconduct amounted to a crime. Relying in particular on the Law Commission paper on InvoluntaryManslaughter (Law Com. No. 237) as a convenient summary of a good deal of the debate by
distinguished academic commentators, he suggested that the current test is “circular”. It is thiscircularity which leads to uncertainty. Mr Gledhill drew attention to, and adopted for the purposesfor his argument, the way in which the Law Commission identified the potential problems arisingfrom linking the civil and the criminal law concepts of negligence where the allegation against thedefendant arose from omission. This was such a case. “It is by no means certain that the scopeof liability for negligent omissions is the same in criminal law as it is in tort.” The principles were“so unclear” that it is difficult to tell whether “the law as currently understood represents achange, and if so, what the implications might be.” The relevant part of the Law Commissionpaper ends, “It is possible that the law in this area fails to meet the standard of certainty requiredby the European Convention on Human Rights .” In Mr Gledhill's submission this is anunderstatement: the standard of certainty is not met.
29 To develop his argument on uncertainty, Mr Gledhill focussed our attention on Art.7 of theConvention , entitled “No punishment without law”, which provides:
“7(1) No-one shall be held guilty of any criminal offence on account of any act oromission which did not constitute a criminal offence under national or international lawat the time when it was committed nor shall a heavier penalty be imposed than the onethat was applicable at the time the criminal offence was committed.”
In our view the essential thrust of this Article is to prohibit the creation of offences, whether by legislation or the incremental development of the common law, which have retrospective application. It reflects a well-understood principle of domestic law, that conduct which did not contravene the criminal law at the *337 time when it took place should not retrospectively be stigmatised as criminal, or expose the perpetrator to punishment. As Lord Reid explained in Waddington v Miah (1974) 59 Cr.App.R. 149 at pp.151 and 152,
“There has for a very long time been a strong feeling against making legislation, andparticularly criminal legislation, retrospective. … I use retrospective in the sense ofauthorising people being punished for what they did before the Act came into force.”
30 Mr Gledhill demonstrated that the Convention contained repeated references to expressionsin English such as “prescribed by law”: in French, the same phrase reads “prévue par la loi”. Weshall assume that the concepts are identical. Article 7 therefore sustains his contention that acriminal offence must be clearly defined in law, and represents the operation of “the principle oflegal certainty” (see, for example, Brumarescu v Romania (2001) 33 E.H.R.R. 35 at para.61 andKokkinakis v Greece (1993) 17 E.H.R.R. 397 at para.52). The principle enables each communityto regulate itself:
“with reference to the norms prevailing in the society in which they live. That generallyentails that the law must be adequately accessible — an individual must have anindication of the legal rules applicable in a given case — and he must be able to foreseethe consequences of his actions, in particular to be able to avoid incurring the sanctionof the criminal law.” ( S.W. v United Kingdom : C.R. v United Kingdom (1995) 21E.H.R.R. 363 )
31 Mr Gledhill further emphasised that in Grayned v City of Rockford 408 US 104 (1972) theUnited States Supreme Court identified “a basic principle of due process that an enactment isvoid for vagueness if its prohibitions are not clearly defined. Vagueness offends several importantvalues … A vague law impermissibly delegates basic policy matters to policemen, judges andjuries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitraryand discriminatory application.” He pointed out that Lord Phillips M.R. had approved these dictain R. (L and another) v Secretary of State for the Home Department [2003] EWCA Civ. 25, [2003]1 W.L.R. 1230 , para.25.
32 We acknowledge the force of these submissions, but simultaneously emphasise that there isnothing novel about them in our jurisprudence. Historic as well as modern examples abound. Inthe 17th century Bacon proclaimed the essential link between justice and legal certainty:
“For if the trumpet give an uncertain sound, who shall prepare himself to the battle? Soif the law give an uncertain sound, who shall prepare to obey it? It ought therefore to
warn before it strikes … Let there be no authority to shed blood; nor let sentence bepronounced in any court upon cases, except according to a known and certain law …Nor should a man be deprived of his life, who did not first know that he was risking it.”(Quoted in Coquillette , Francis Bacon pp.244 and 248, from Aphorism 8 and Aphorism39 — A Treatise on Universal Justice .)
*338 The judgment of the Supreme Court of the United States in Grayned effectively mirrored Blackstone:
“… Law, without equity, though hard and disagreeable, is much more desirable for thepublic good than equity without law: which would make every judge a legislator, andintroduce most infinite confusion; as there would then be almost as many rules of actionlaid down in our courts, as there are differences of capacity and sentiment in the humanmind.” ( Commentaries , 3rd ed., 1769, vol. 1 p.62)
33 Recent judicial observations are to the same effect. Lord Diplock commented inBlack-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] A.C. 591 atp.638:
“The acceptance of the rule of law as a constitutional principle requires that a citizen,before committing himself to any course of action, should be able to know in advancewhat are the legal consequences that will flow from it.”
In Fothergill v Monarch Airlines Ltd [1981] A.C. 251 at 279 he repeated the same point:
“Elementary justice or, to use the concept often cited by the European court, the needfor legal certainty demands that the rules by which the citizen is to be bound should beascertainable by him (or more realistically by a competent lawyer advising him) byreference to identifiable sources that are publicly accessible.”
More tersely, in Warner v Metropolitan Police Commissioner (1968) 52 Cr.App.R. 373, 414,[1969] 2 A.C. 256 , 296, Lord Morris of Borth-y-Gest explained in terms that:
“… In criminal matters it is important to have clarity and certainty.”
The approach of the common law is perhaps best encapsulated in the statement relating tojudicial precedent issued by Lord Gardiner L.C. on behalf of himself and the Lords of Appeal inOrdinary on July 26, 1966 Practice Statement (Judicial Precedent) (1986) 83 Cr.App.R. 191,[1966] 1 W.L.R. 1234 .
“Their Lordships regard the use of precedent as an indispensable foundation uponwhich to decide what is the law and its application to individual case. It provides at leastsome degree of certainty upon which individuals can rely in the conduct of their affairs,as well as a basis for orderly development of legal rules.”
In allowing themselves (but not courts at any other level) to depart from the absolute obligation tofollow earlier decisions of the House of Lords, their Lordships expressly bore in mind:
“… the danger of disturbing retrospectively the basis on which contracts, settlements ofproperty and fiscal arrangements have been entered into and also the especial need forcertainty as to the criminal law.”
*339
34 No further citation is required. In summary, it is not to be supposed that prior to theimplementation of the Human Rights Act 1998 , either this Court, or the House of Lords, wouldhave been indifferent to or unaware of the need for the criminal law in particular to be predictableand certain. Vague laws which purport to create criminal liability are undesirable, and in extremecases, where it occurs, their very vagueness may make it impossible to identify the conductwhich is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of apurported crime any conviction for it would be unsafe. That said, however, the requirement is forsufficient rather than absolute certainty.
35 The ambit of the principle, as well as its limitations, were clearly described in the SundayTimes v United Kingdom (1979) 2 E.H.R.R. 245 . The law must be formulated:
“… with sufficient precision to enable the citizen to regulate his conduct: he must beable — if need be with appropriate advice — to foresee, to a degree that is reasonablein the circumstances, the consequences which any given action may entail. Thoseconsequences need not be foreseeable with absolute certainty: experience shows thisto be unobtainable. Again, whilst certainty is highly desirable, it may bring in its trainexcessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesserextent, are vague, and whose interpretation and application are questions of practice.”
Moreover, there is a distinction to be drawn between undesirable, and in extreme cases,unacceptable uncertainty about the necessary ingredients of a criminal offence, and uncertaintyin the process by which it is decided whether the required ingredients of the offence have beenestablished in an individual case. The point was highlighted in Wingrove v United Kingdom(1996) 24 E.H.R.R. 1 :
“It was a feature common to most laws and legal systems that tribunals may reachdifferent conclusions, even when applying the same laws to the same facts. This did notnecessarily make the laws inaccessible or unforeseeable.”
36 We can see the practical application of these comments in Handyside v United Kingdom(1974) 17 Y.B. 228 , where the Commission considered the definition of obscenity in theObscene Publications Acts, 1959 – 1964 . This offence is concerned with items which have atendency to deprave and corrupt, a very general definition, certainly capable on forensic analysisof being criticised on the basis of uncertainty. The Commission nevertheless concluded that theoffence was adequately described. In Wingrove itself, the court rejected the argument thatblasphemous libel—that is, libel defined in very broad terms as “likely to shock and outrage thefeelings of the general body of Christian believers”—was insufficiently accessible or certain.
37 Since the implementation of the Human Rights Act 1998 , the issue of uncertainty has also been addressed on a number of occasions in this Court. It has been decided that the offence of making indecent photographs of children was *340 sufficiently certain to satisfy Arts 8 and 10 of the Convention ( R. v Smethurst [2001] EWCA Crim 772, [2002] 1 Cr.App.R. 50 ); that the offence of publishing an obscene article satisfies the requirements of Art.7 of the Convention ( R. v Perrin [2002] EWCA Crim 747 ); and that the offence of causing a public nuisance, by sending an envelope through the post containing salt, which was suspected to be anthrax, contrary to common law, was also sufficiently certain to satisfy the requirements of Arts 7, 8 and 10 of the Convention ( R. v Goldstein [2003] EWCA Crim 3450, [2004] 1 Cr.App.R. 388, [2004] 1 W.L.R. 2878 ). In each case the uncertainty argument was rejected. In Goldstein itself, at para.17, Latham L.J. commented:
“The elements of the offence are sufficiently clear to enable a person, with appropriatelegal advice if necessary, to regulate his behaviour. … A citizen, appropriately advised,could foresee that the conduct identified was capable of amounting to a publicnuisance.”
In our judgment, the incorporation of the Convention , while providing a salutary reminder, hasnot effected any significant extension of or change to the “certainty” principle as long understoodat common law.
38 In further argument Mr Gledhill relied on Art.6(1) of the Convention which entitles a defendantto:
“… a fair and public hearing within a reasonable time by an independent and impartialtribunal established by law.”
The developing jurisprudence in relation to Art.6 suggests that a reasoned decision is aconcomitant to a fair hearing. The jury provides a verdict. It is not required to explain how it cameto its verdict. When deciding whether manslaughter by gross negligence has been proved, thenature of this offence, and the problems of uncertainty and circularity associated with it, are such
that the jury is deciding whether the conduct of the defendant should be defined as a crime. MrGledhill submits that this is no more and no less than an issue of law. The absence of a reasonedjudgment on questions of law engages the right to a fair trial, and the absence of reasonsdiminishes or extinguishes that entitlement.
39 After he had fully considered the recent decision of the House of Lords in R. v G and Another[2003] UKHL 50, [2004] 1 Cr.App.R. 237, [2004] 1 A.C. 1034 , Mr Gledhill deployed an additionalargument which was not before Langley J. In essence, he submitted that with the exception ofcausing death by dangerous driving, no serious criminal offence could be committed withoutmens rea . He relied on what Lord Bingham of Cornhill, at para.32, described as a “salutaryprinciple that conviction of serious crime should depend on proof not simply that the defendantcaused (by act or omission) an injurious result to another but that his state of mind when soacting was culpable”. Unless some element of mens rea , such, for example, as recklessness,was a necessary ingredient of manslaughter by gross negligence, this essential principle wascontravened.
40 Mr Gledhill's submissions were adopted and supported by Mr Kennedy. As we shall see, save for the recent additional argument based on G & Another , they were also and most cogently advanced by Lord Williams of Mostyn Q.C., and *341 rejected by the House of Lords in R. v Adomako (1994) 99 Cr.App.R. 362, [1995] 1 A.C. 171 . Mr Gledhill, in effect, redeploys the same argument on the basis that, if the Convention had been incorporated into domestic law when Lord Williams was making his submissions, they would have succeeded. Mr Gledhill's arguments therefore require us to consider whether the implementation of the ECHR means that we are no longer bound by Adomako .
41 Our analysis of these submissions begins with the simple proposition that at common law awide variety of unlawful homicides which are not murder are classified as manslaughter. “… Of allcrimes manslaughter appears to afford most difficulties of definition, for it concerns homicide inso many and so varying conditions …” ( per Lord Atkin in Andrews v Director of PublicProsecutions (1938) 26 Cr.App.R. 34, 45, [1937] A.C. 576 , 581). However although the difficultyof definition tends to encourage the conclusion that the true ambit of manslaughter is uncertain,the reality is that the offence is based on well-established principles. Involuntary manslaughter(with which we are concerned) encapsulates homicides in which the perpetrator lacked thespecific intention to cause death or serious bodily harm and therefore lacked the “maliceaforethought” required for murder. In view of some of the more enthusiastic submissions madeby Mr Gledhill in exchanges with the Court, notwithstanding the risk of stating the obvious, wemust observe, first, that involuntary manslaughter does not extend criminal liability to deathscaused by accident, or indeed to deaths which occur without some recognised element of fault bythe offender, and second, that the existence of the offence itself engages the right to life and itsprotection by the criminal law.
42 We are not here immediately concerned with involuntary manslaughter which falls within thecategory of death resulting from what is sometimes described as an unlawful act likely to causebodily harm, or alternatively, from an unlawful and dangerous act. (On this topic generally, seethe discussion in Smith and Hogan, Criminal Law , 10th ed. (2002) at pp.378–385). Professor SirJohn Smith Q.C. explained that in this category of manslaughter (that is, causing death by anunlawful and dangerous act) the ingredient of unlawfulness “must arise otherwise than throughnegligence”:
“This requirement is implicit in the rule in Church . An act which all sober and reasonable people would realise entailed the risk (sc., an unjustifiable risk) of harm to others most certainly becomes the tort of negligence when harm results and therefore the reference to ‘an unlawful act’ would be otiose if it did not mean unlawful in some other respect. This is in accordance with the well-established rule that negligence sufficient to found civil liability is not necessarily enough for criminal guilt, that death caused in the course of committing the tort of negligence is not necessarily manslaughter. But the limitation goes further than this: there are degrees of negligence which are criminally punishable which are yet not sufficient to found a charge of manslaughter. If, then, the unlawfulness, whether civil or criminal, *342 of the act arises solely from the negligent manner in which it is performed, death caused by the act will not necessarily be manslaughter. This follows from the decision of the House of Lords in Andrews v DPP .
The distinction evidently intended, viz. between acts which are unlawful because ofnegligent performance and acts which are unlawful for some other reason, is at leastintelligible and, in view of the established distinction between civil and criminalnegligence, a necessary limitation.”
43 This is the background against which the offence of involuntary manslaughter by grossnegligence must be addressed. The offence has long been recognised by the common law, andit has recently been examined in the House of Lords in Adomako . An account of its historicdevelopment is therefore unnecessary.
44 A number of problematic matters were considered in Adomako . First, as a matter of ordinaryEnglish, manslaughter by gross negligence and manslaughter by recklessness sound verysimilar. It was therefore arguable that, in reality, they amounted to the same offence, rather thantwo distinct forms of involuntary manslaughter. Second, given that death could and did arise fromreckless driving of motor vehicles, the development of an additional species of manslaughter,motor manslaughter, might be discerned. The third issue for consideration was the impact on theoffence of manslaughter by recklessness (and possibly also on manslaughter by grossnegligence) of the well-known and troublesome decisions of the House of Lords in relation to themeaning of recklessness in criminal statutes. ( R. v Caldwell (1981) 73 Cr.App.R. 13, [1982] A.C. 341 , and R. v Lawrence (1981) 73 Cr.App.R. 1, [1982] A.C. 510 ). The problem was furthercomplicated by the later decision of the House of Lords in R. v Seymour (1983) 77 Cr.App.R. 215, [1983] 2 A.C. 493 , where the indictment charged manslaughter by reckless driving and itwas said that recklessness in the sense described in Caldwell and Lawrence applied to alloffences, including manslaughter, “unless Parliament has otherwise ordained”. It is sufficient tonote the answer given to the certified question by Lord Roskill in the only speech in the House ofLords (pp.216 and 505):
“Where manslaughter is charged and the circumstances are that the victim was killed asa result of the reckless driving of the defendant on a public highway, the trial judgeshould give the jury the directions suggested in R v Lawrence .”
He added that it was “appropriate also to point out that in order to constitute … manslaughter, therisk of death being caused by the manner of the defendant's driving must be very high”. Thereference to “the risk of death” should be noted: so should the recent departure of the House ofLords from its own decision in Caldwell in R. v G and Another [2004] 1 Cr.App.R. 237 .
45 The fourth matter for consideration was linked with the fact that Adomako's unsuccessfulappeal to the Court of Appeal, Criminal Division, had been decided at the same time assuccessful appeals by Prentice and Sullman, who were also doctors whose negligence was saidto have caused the death of a patient: R. v Prentice and Others (1994) 98 Cr.App.R. 262, [1994]Q.B. 302 . The convictions of Prentice and Sullman were quashed on the basis that the judge'sdirection meant that the jury did not consider any “excuses” or relevant mitigating circumstanceswhen deciding whether gross negligence had been established. That error did not apply toAdomako , to which we must now return.
46 Adomako was an anaesthetist who was convicted of manslaughter by gross negligence. Hispatient underwent an operation to his eye. During the course of the operation an endotrachealtube became disconnected. The patient was deprived of oxygen. Adomako's alleged negligencearose from his failure to observe or respond to obvious signs that a disconnection had takenplace and that the patient had stopped breathing. At trial it was accepted that he had beennegligent in the sense that he had failed to observe appropriate professional standards to apatient to whom he owed a duty of care. The issue was whether his conduct fell within the ambitof manslaughter by gross negligence.
47 In the House of Lords, the earlier authorities were fully reviewed. Reference was made to theConsultation Paper by the Law Commission on Criminal Law, Involuntary Manslaughter (1994)(Law Com. No. 135) but not, of course, to their recent Paper on the same subject (Law Com. No. 237), which had not yet been published. Submissions advanced by Lord Williams of MostynQ.C., on behalf of the appellant, were directed at establishing the absence of any “logical orjurisprudential difference” between cases of involuntary manslaughter caused by the driving of
motor vehicles and those caused by any other means. Attention was directed to the possibleimpact of R. v Lawrence (1981) 73 Cr.App.R. 1, [1982] A.C. 510 and R. v Seymour (1983) 77Cr.App.R. 215 . Lord Williams suggested the single test of recklessness for all cases ofinvoluntary manslaughter, and mounted a sustained criticism of the offence for its lack of clarityand certainty, and its circularity, because the jury were directed to convict only if they thought thata crime had been committed. Accordingly the offence of manslaughter by gross negligence couldnot properly be sustained.
48 The decision of the House of Lords in Adomako clearly identified the ingredients ofmanslaughter by gross negligence. In very brief summary, confirming Andrews v Director ofPublic Prosecutions (1938) 26 Cr.App.R. 34, [1937] A.C. 576 , the offence requires, first, deathresulting from a negligent breach of the duty of care owed by the defendant to the deceased;second, that in negligent breach of that duty, the victim was exposed by the defendant to the riskof death; and third, that the circumstances were so reprehensible as to amount to grossnegligence.
49 No issue arises whether both appellants owed a duty of care to the deceased, or were negligently in breach of it. There was however helpful argument about the nature of the relevant risk. Was it, as the judge directed the jury in the present case, “serious risk to life”, or was it much broader, extending to serious risk to safety as well as life? In its original formulation in R. v Bateman (1926) 19 Cr.App.R. 8 , Lord Hewitt C.J. referred to “disregard to the life and safety of others” in the sense of serious injury. In Seymour , the risk was confined to the risk of death. In R. v Stone (1977) 64 Cr.App.R. 186, [1977] Q.B. 554 and R. v West London Coroner, Ex p. Grey [1988] Q.B. 467 reference was made to risks *344 in broader terms, extending to health and welfare. Although Lord Mackay of Clashfern spoke in approving terms of these decisions in a different context, it is clear that his approval was directed to the deployment of the word “reckless”. He was not addressing, and it would have been inconsistent with his own analysis of the legal principles if he were approving, the wider basis for identifying risk described in Stone and West London Coroner Ex p. Grey . It is also striking that Lord Mackay did not expressly adopt or approve the broader formulation of risk made by Lord Taylor of Gosforth C.J. in Prentice . Since Adomako , this issue has been addressed in this court, in R. v Singh (Gurphal) [1999] Crim. L.R. 582 and the Divisional Court in Lewin v Crown Prosecution Service [2002] EWHC 1049 (Admin), unreported, May 24, 2002 . In Singh , this Court strongly approved the trial judge's direction in a case of manslaughter by gross negligence that “the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death”. In Lewin, the Divisional Court applied that direction.
50 Mr David Perry, on behalf of the Attorney General, informed us that, as a matter of policy,when making a decision whether to prosecute for this offence in cases like the present, theDirector of Public Prosecutions looks for evidence of an obvious risk of death, and that, if theextent of the risk were limited to the obvious risk of serious injury, and no more, prosecutionwould not follow.
51 The editors of Blackstone's Criminal Practice suggest that the law needs clarification, andthat, if it were clarified, some “degree of symmetry” between murder and manslaughter would beachieved if, for the purposes of gross negligence manslaughter, the risk should extend togrievous bodily harm. Professor Smith took the contrary view, suggesting that “if we are to havean offence of homicide by gross negligence at all, it seems right that it should be … limited. Thecircumstances must be such that a reasonably prudent person would have foreseen a seriousrisk, not merely of injury, even serious injury, but of death”.
52 There will, of course, be numerous occasions when these distinctions are entirely theoretical. From time to time, however, they will be of great significance, not only to the decision whether toprosecute, but also to the risk of conviction of manslaughter. In our judgment, where the issue ofrisk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to therisk of death, and is not sufficiently satisfied by the risk of bodily injury or injury to health. In short,the offence requires gross negligence in circumstances where what is at risk is the life of anindividual to whom the defendant owes a duty of care. As such it serves to protect his or her rightto life.
53 Adomako further explained that with involuntary manslaughter, notwithstanding Seymour ,recklessness as explained in the Lawrence / Caldwell sense had no application. The use of theword “reckless” by the trial judge, as part of his exposition of the concept of gross negligence in
an appropriate case, was permissible. In the single speech agreed by the other members of the House, as we have already indicated, Lord Mackay approved Stone and West London Coroner Ex p. Grey as examples of an acceptable use of the word “reckless” in its ordinary connotation. In Stone , Geoffrey Lane L.J. described examples of “recklessness”, *345
observations of Lord Atkin in Andrews that reckless “was an appropriate epithet for the very highdegree of negligence required before the defendant could be convicted of manslaughter by grossnegligence.” Although the word “reckless” might be deployed in summing up to the jury, its usesimply reflected one way of describing the ingredients of the offence. At the end of his speechLord Mackay's language was quite unequivocal ( 99 Cr.App.R. 362 at p.371, [1995] 1 A.C. 171 atp.189 ):
“While therefore I have perhaps said in my view it is perfectly open to a trial judge to usethe word ‘reckless’ if it appears appropriate in the circumstances of a particular case, asindicating the extent to which the defendant's conduct must deviate from that of a properstandard of care, I do not think it right to require that this should be done, and certainlynot right that it should incorporate the full detail required in the case of Lawrence .”
54 The point of law certified for the decision of the House of Lords was answered at pp.370 and188:
“In cases of manslaughter by criminal negligence involving a breach of duty, it is asufficient direction to the jury to adopt the gross negligence tests set out by the Court ofAppeal in the present case following R. v Bateman (1925) 19 Cr.App.R. 8 and Andrewsv Director of Public Prosecutions (1938) 26 Cr.App.R. 34, [1937] A.C. 576 and that it isnot necessary to refer to the definition of recklessness in R. v Lawrence (1981) 73Cr.App.R. 1, [1982] A.C. 510 , although it is perfectly open to the trial judge to use theword ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems itappropriate in the circumstances of the particular case.”
The result of the appeal was that the continuing existence of the offence of manslaughter bygross negligence was confirmed. The attempt to replace manslaughter by gross negligence withmanslaughter by recklessness was rejected.
55 It is convenient now to address the argument that the decision in G and Another should leadus to reassess whether gross negligence manslaughter should now be replaced by and confinedto reckless manslaughter. As we have shown, precisely this argument by Lord Williams of MostynQ.C. was rejected in Adomako . We also note, first, that Parliament has not given effect topossible reforms on this topic discussed by the Law Commission, and, second, notwithstandingthat Adomako was cited in argument in G and Another , it was not subjected to any reservationsor criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in G he was notaddressing the meaning of “reckless” in any other statutory or common law context than s.1(1)and (2) of the Criminal Damage Act 1971 . In these circumstances, although we gave leave to MrGledhill to amend his grounds of appeal to enable him to deploy the argument, we reject it.
56 We can now reflect on Mr Gledhill's associated contention that if recklessness is not a necessary ingredient of this offence, the decision in Attorney General's Reference (No. 2 of 1999) [2000] 2 Cr.App.R. 207, [2000] Q.B. 796 led to the *346
manslaughter by gross negligence did not require proof of any specific state of mind, and that thedefendant's state of mind was irrelevant. In our judgment the submission is based on a narrowreading of the decision that a defendant may properly be convicted of gross negligencemanslaughter in the absence of evidence as to his state of mind. However when it is available,such evidence is not irrelevant. It will often be a critical factor in the decision (see R. (Rowley) vDirector of Public Prosecutions [2003] EWHC 693 ). In Adomako itself, Lord Mackay directedattention to “all” of the circumstances in which the defendant was placed: he did not adopt, orendorse, or attempt to redefine the list of states of mind to which Lord Taylor C.J. referred inPrentice , which was not in any event “exhaustive” of possible relevant states of mind. It istherefore clear that the defendant is not to be convicted without fair consideration of all therelevant circumstances in which his breach of duty occurred. In each case, of course, thecircumstances are fact-specific.
57 Mr Gledhill nevertheless contended that even so, the problem of mens rea remains. This, heargued was a necessary, but absent, ingredient of the offence. We have reflected, of course, that
if the defendant intends death or really serious harm, and acts in such a way as to cause either,and death results, he would be guilty of murder. If he intends limited injury, and causes death, hewould be guilty of manslaughter in any event. We are here concerned with the defendant whodoes not intend injury, but who in all the contemporaneous circumstances is grossly negligent. Asa matter of strict language, “ mens rea ” is concerned with an individual defendant's state of mind. Speaking generally, negligence is concerned with his failure to behave in accordance with thestandards required of the reasonable man. Looked at in this way, the two concepts are distinct. However, the term “ mens rea ” is also used to describe the ingredient of fault or culpabilityrequired before criminal liability for the defendant's actions may be established. In Sweet vParsley (1969) 53 Cr.App.R. 221, [1970] A.C. 132 , Lord Reid explained that there wereoccasions when gross negligence provided the “necessary mental element” for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for grossnegligence provides the necessary element of culpability.
58 We can now return to the argument based on circularity and uncertainty, and the applicationof Arts 6 and 7 of the Convention . The most important passages in the speech of Lord Mackayon the issue of circularity read ( (1994) 99 Cr.App.R. 362, 369, [1995] 1 A.C. 171, 187 ):
“… The jury must go on to consider whether that breach of duty should be characterisedas gross negligence and therefore as a crime. This will depend on the seriousness ofthe breach of duty committed by the defendant in all the circumstances in which thedefendant was placed when it occurred. The jury will have to consider whether theextent to which the defendant's conduct departed from the proper standard of careincumbent upon him, involving as it must have done a risk of death to the patient, wassuch that it should be judged criminal. *347
It is true that, to a certain extent, this involves an element of circularity, but in this branchof the law I do not believe that is fatal to its being correct as a test of how far conductmust depart from accepted standards to be characterised as criminal … The essence ofthe matter which is supremely a jury question is whether, having regard to the risk ofdeath involved, the conduct of the defendant was so bad in all the circumstances as toamount in their judgment to a criminal act or omission.”
59 Mr Gledhill suggested that this passage demonstrated that an additional specific ingredient ofthis offence was that the jury had to decide whether the defendant's conduct amounted to acrime. If the jury could, or was required to, define the offence for itself, and accordingly might doso on some unaccountable or unprincipled or unexplained basis, to adopt Bacon, the soundgiven by the law would indeed be uncertain, and would then strike without warning. Mr Gledhill'sargument then would be compelling.
60 Looking at the authorities since Bateman , the purpose of referring to the differences betweencivil and criminal liability, whether in the passage in Lord Mackay's speech to which we have justreferred, or in directions to the jury, is to highlight that the burden on the prosecution goesbeyond proof of negligence for which compensation would be payable. Negligence of that degreecould not lead to a conviction for manslaughter. The negligence must be so bad, “gross”, that ifall the other ingredients of the offence are proved, then it amounts to a crime and is punishableas such.
61 This point was addressed by Lord Atkin in Andrews v Director of Public Prosecutions (1938)26 Cr.App.R. 34, 46, [1937] A.C. 576, 582 , when he referred to Williamson (1807) 3 C&P 635 :
“… where a man who practised as an accoucheur, owing to a mistake in his observationof the actual symptoms, inflicted on a patient terrible injuries from which she died. Tosubstantiate that charge [namely, manslaughter] Lord Ellenborough said, ‘the prisonermust have been guilty of criminal misconduct, arising either from the grossest ignoranceor the most criminal inattention.’ The word ‘criminal’ in any attempt to define a crime isperhaps not the most helpful, but it is plain that the Lord Chief Justice meant to indicateto the jury a high degree of negligence. So at a much later date in Bateman (1925) 19Cr. App. R 8 a charge of manslaughter was made against a qualified medicalpractitioner in similar circumstances to those of Williamson …. I think with respect thatthe expressions used are not, indeed they were probably not intended to be, a precise
62 Accordingly, the value of references to the criminal law in this context is that they avoid the danger that the jury may equate what we may describe as “simple” negligence, which in relation to manslaughter would not be a crime at all, with negligence which involves a criminal offence. In short, by bringing home to the jury the extent of the burden on the prosecution, they ensure that the defendant whose negligence does not fall within the ambit of the criminal law is not convicted of a crime. They do not alter the essential ingredients of this offence. *348 A conviction cannot be returned if the negligent conduct is or may be less than gross. If however the defendant is found by the jury to have been grossly negligent, then, if the jury is to act in accordance with its duty, he must be convicted. This is precisely what Lord Mackay indicated when, in the passage already cited, he said: “… The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime” (our emphasis). The decision whether the conduct was criminal is described not as “the” test, but as “a” test as to how far the conduct in question must depart from accepted standards to be “characterised as criminal”. 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.
63 On examination, this represents one example, among many, of problems which juries areexpected to address on a daily basis. They include equally difficult questions, such as whether adefendant has acted dishonestly, by reference to contemporary standards, or whether he hasacted in reasonable self-defence, or, when charged with causing death by dangerous driving,whether the standards of his driving fell far below what should be expected of a competent andcareful driver. These examples represent the commonplace for juries. Each of these questionscould be said to be vague and uncertain. If he made enquiries in advance, at most an individualwould be told the principle of law which the jury would be directed to apply: he could not beadvised what a jury would think of the individual case, and how it would be decided. Thatinvolves an element of uncertainty about the outcome of the decision-making process, but notunacceptable uncertainty about the offence itself.
64 In our judgment the law is clear. The ingredients of the offence have been clearly defined, andthe principles decided in the House of Lords in Adomako . They involve no uncertainty. Thehypothetical citizen, seeking to know his position, would be advised that, assuming he owed aduty of care to the deceased which he had negligently broken, and that death resulted, he wouldbe liable to conviction for manslaughter if, on the available evidence, the jury was satisfied thathis negligence was gross. A doctor would be told that grossly negligent treatment of a patientwhich exposed him or her to the risk of death, and caused it, would constitute manslaughter.
65 After Lord Williams's sustained criticism of the offence of manslaughter by gross negligence,the House of Lords in Adomako clarified the relevant principles and the ingredients of thisoffence. Although, to a limited extent, Lord Mackay accepted that there was an element ofcircularity in the process by which the jury would arrive at its verdict, the element of circularitywhich he identified did not then and does not now result in uncertainty which offends againstArt.7 , nor if we may say so, any principle of common law. Gross negligence manslaughter is notincompatible with the ECHR . Accordingly the appeal arising from the question certified by thetrial judge must be dismissed. *349
66 This conclusion in effect disposes of the Art.6 argument. It is well-understood in the EuropeanCourt, and accepted, that a jury is not required to give reasons for its decision. (See, for example,Saric v Denmark, Application 31913/96, February 2, 1999 .) In the present case, by reference tothe indictment in its amended form, and the summing up of the trial judge delivered in open court,the appellants knew the case alleged against each of them, and the issues that the jury had toconsider, and we, by reference to the same documents, can examine the basis on which theywere convicted. The jury concluded that the conduct of each appellant in the course ofperforming his professional obligations to his patient was “truly exceptionally bad”, and showed ahigh degree of indifference to an obvious and serious risk to the patient's life. Accordingly, alongwith the other ingredients of the offence, gross negligence too, was proved. In our judgment it is
unrealistic to suggest that the basis for the jury's decision cannot readily be understood. Accordingly this contention fails.
67 We must now turn to a separate application on behalf of the appellants to call fresh evidence. Fresh evidence
68 At the conclusion of the oral argument, we indicated our decision that the application to callfresh evidence from Professor Michael Campbell was refused. We shall now give our reasons.
69 Professor Campbell is Professor of Medical Statistics at the University of Sheffield. Hisspeciality is statistics, not medicine. His report is dated February 2, 2004. It was notcommissioned until after the trial and convictions of the appellants. The focus of the report, whichwe have studied, is statistical material relating to mortality rates for staphylococcal toxic shocksyndrome. The essential submission on behalf of the appellants is that this report demonstratesthat in relation to the issue of causation of death the jury at trial was presented with anunrealistically high estimate of the deceased's chances of survival.
70 Langley J. correctly directed the jury that one of the matters about which they had to be surebefore the appellants could be convicted was that such failure or failures as were proved againsteach individually was a substantial, even if not the sole or the major, cause of death. Hisdirections include this passage:
“The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips' death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point in the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a *350 cause of Sean Phillips' death, and, whatever you think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean's condition became irreversible, I repeat that you must give the defendants the benefit of those doubts.”
71 We must briefly address the way in which evidence of a statistical nature came to be beforethe jury. The initial evidence tendered on behalf of the Crown did not refer to it. However, somethree weeks before trial, the Crown received the defence report from Dr Wilson. This raised thepossibility that the deceased's illness could reasonably have been taken for a different type ofinfection (clostridium difficile) from that which he did in fact suffer (TSST1). The correctmanagement for this form of infection would have avoided the use of antibiotics. However, inaddition, the report set out statistics relating to toxic shock syndrome, which included one studyof 35 cases in the United Kingdom prior to 1985, where a fatality rate of 16.7 per cent wasrecorded. It concluded that “deaths occur in 3% of patients who have acute tubular necrosis,inflammatory changes in the liver and … lung”. A further defence report, served pre-trial fromProfessor Cartwright, a microbiologist, who was not ultimately called to give evidence before thejury, postulated a fatality rate of “less than 5%”.
72 Following receipt of the report from Dr Wilson the Crown instructed and obtained a report fromDr Wilcox. The trial began on March 3, 2003. His report was served on March 6. As a result oflegal argument, the calling of evidence was postponed until March 10. This report dealt largelywith the clostridium difficile point. The short reference made to statistics by Dr Wilcox(presumably in response to the defence expert) reported “the case fatality rate associated withstaphylococcal toxic shock syndrome is low (#4%), although this rate is higher in patients withnon-menstrual forms of the disease.” Dr Wilcox appended an extract from a textbook, “ Principlesand Practice of Infectious Diseases ”, published in 2000, which showed a fatality rate innon-menstrual cases of “about 3%”. He described this textbook as “the authoritative textbookused by clinical microbiologists in the UK and the US”.
73 During the course of the Crown's evidence, but before Dr Wilcox gave evidence, a furtherreport was served on behalf of the defence from Dr Nathwani, a lecturer in infectious diseases. He put the mortality rate in non-menstrual toxic shock syndrome cases at around 4 per cent.
74 When he was called to give evidence-in-chief, Dr Wilcox gave no statistical evidence. The issue was raised in cross-examination by Mr Gledhill. Dr Wilcox then gave some evidence on the topic. The deceased was one of a relatively small proportion of people who lacked the necessary anti-bodies which would deal with toxins produced by staphylococcus aureus, and referred to an overall fatality rate of less than 5 per cent. He indicated that different reports showed different figures. This evidence was not initially challenged by Mr Gledhill, and when Mr Coonan Q.C., then acting for Dr Srivastava, cross-examined Dr Wilcox, he too referred to the 5 per cent figure in a way which did not challenge it. However, on the next day, Dr Wilcox was recalled for further cross-examination by Mr Gledhill, who put to him that certain individual studies tended to show a *351 much higher fatality rate than 5 per cent. Dr Wilcox responded that he did not consider that useful figures could be drawn from very small studies, and that the “ballpark” figure of 5 per cent was based on taking a group of reported studies. In effect, he emphasised the need for caution and the limited conclusions which could properly be drawn from the statistics. He pointed out that he had referred to medical literature consulted by all the experts, as well as the standard textbook, adding that he expected a fit and healthy 31 year old (such as the deceased) would be at the lower end of the mortality rate range, although he was not in a position to quote any statistical information about the risks which might apply to such an individual.
75 Professor Forrest gave no evidence of a statistical nature, and he was not cross-examined onthe subject.
76 We have recorded, and shall not repeat, a summary of the evidence given by ProfessorForrest and Dr Wilcox on the causation issue, based on their analysis of the clinical evidence, thestandards of management, and remaining matters (other than statistical evidence) which bore onthis question.
77 When Dr Wilson gave evidence for the defence, he explained that he thought that the fatalityrate was speculative, because the condition from which the deceased suffered was so rare thatthere was a lack of verifiable information on which to base properly drawn conclusions. Hementioned a non-menstrual fatality rate of 11 per cent (which had not appeared in his report) andwas thus suggesting a higher fatality rate than Dr Wilcox. He did however point out that this ratewas based on a small number of cases. Having stated that there was a greater than a 3 per centto 5 per cent risk of death in any patient suffering from toxic shock syndrome, he said that as timepassed, while the patient suffered from the condition without treatment, the risk of fatalityincreased.
78 This provides the context in which we considered the report from Professor Campbell. Theissue of statistics had been introduced and pursued by the defence. It had not formed anypositive part of the Crown's case, although when cross-examined, one of the Crown experts, DrWilcox, gave evidence on the topic. At trial, the balance of evidence from both sides seemed tosuggest a figure in the order of 5 per cent as the appropriate overall statistical figure for fatalityrates.
79 In his report, Professor Campbell refers to the four small studies about which Dr Wilcox had been cross-examined. It was agreed before us, however, that one study (of menstrual toxic shock cases) was irrelevant for present purposes. That left three studies for consideration by Professor Campbell. He suggested that two of these papers advanced a higher fatality rate than the 5 per cent mentioned by Dr Wilcox, adding however that the data sets were small, and that there would be considerable uncertainty about the fatality rate. He further pointed out that the data were old, and that by now the risk may have been reduced. Indeed he referred to wide confidence intervals (or margins of error) in calculating fatality rates in all three of these studies. The third study analysed 36 cases, where the subjects were aged between 10 months and 74 years. Professor Campbell suggested that this study did not identify the age of the victim as a risk-factor, adding that in the absence of any controlled trials, it was not possible to put a figure *352
on the mortality rates among those encompassed in this study who were treated
80 Professor Campbell did not consider that there were sufficient data to express an opinionwhether the chance of death in the case of Sean Phillips was low or high. The disease from
which he suffered was very rare, and therefore a great deal of uncertainty attached to anyestimates. He suggested that it was always dangerous “to try to extrapolate a medical modelwithout empirical evidence”. He agreed that Dr Wilcox was correct to state (as he did) that therewas no relevant statistical information about the risks attaching to a 31 year old man, sufferingfrom TSST1, who is properly treated. However he pointed out that there was no individual studywhich highlighted that younger people were at a lower risk of death. He expressed the view thatthe experts' conclusions at trial did not appear to be drawn from the published studies, and thatsome of the opinions expressed by them were unsupported by evidence. However he made noreference to the textbook, “ Principles and Practice of Infectious Diseases ”, upon which DrWilcox based his overall figures and to which he referred when this issue was explored.
81 This material led Mr Gledhill to submit that Professor Campbell's evidence was important intwo respects. First, it showed that there was no statistical evidence that age was a prognosticfactor, or that ability to cope with toxins was related to age. Second, the breadth of theconfidence intervals described by Professor Campbell undermined the statistical evidence givenby Dr Wilcox. This evidence would significantly increase the prospect that the jury might havebeen unable to be sure of any causal link between the absence of appropriate treatment andSean Phillips' death. Mr Kennedy, for Dr Srivastava, supported these submissions, particularly inrelation to what he characterised as the “fit and healthy mantra”.
82 The Crown's position before us, in essence, was that this issue, so far as it had any relevanceat all, was introduced and pursued at trial by the appellants, and that all the evidence on theissue should have been raised then. In the result, the balance of evidence available to all sides attrial suggested that a figure in the order of 5 per cent provided the appropriate overall base figurefor fatality rates. The material provided by Professor Campbell would not, it was argued, provideany basis for allowing the appeals and the statistical material failed to address the clinicalaspects of the causation issue.
83 We need not recite s.23 of the Criminal Appeal Act 1968 . The principles are well-understood. In general, the defendant must deploy his case before the trial jury. If he were free on appeal tomount a case based on expert evidence which could and should have been advanced before thejury, the trial process would be subverted. Therefore the absence of any reasonable explanationfor failing to adduce such evidence is a highly material factor to the exercise of the court's powersunder s.23 . Nevertheless this would not provide an absolute bar or prohibit the reception of freshevidence if this were necessary or expedient in the interests of justice.
84 The narrative of events demonstrates that evidence of a statistical nature was introduced into the case, and eventually the trial, by the defendants. When *353 Dr Wilcox was cross-examined, his evidence on this topic was not seriously controversial. Dr Wilson suggested that there were studies which tended to produce a higher figure than that advanced by Dr Wilcox, but his essential dispute with him turned on the emphasis which could properly be attached to this statistical material. The defence did not call either of the other experts available to them, who had put the fatality rate in the same range as Dr Wilcox and so, at trial, they depended on Dr Wilson. Mr Gledhill candidly explained to us that after Dr Wilcox had rejected the proposition that real value should properly be attached to the small studies which were put to him in cross-examination, the defence considered whether a statistician should be approached. One was identified. His secretary was contacted, but the statistician could not then make himself available. No further step was taken. No enquiry was made even in general terms as to whether a statistician could in fact help. No application was made to the judge for the trial to be adjourned, let alone for the jury to be discharged. These decisions were deliberate and conscious. Mr Gledhill said that the defence were happy to rely on Dr Wilson as their expert. The general feeling was that the trial had gone well from the defence point of view, and they did not really know what the statistician could or would say. So it was decided to rely on Dr Wilson to counterbalance Dr Wilcox on this issue. Regrettably from the defendants' point of view, Dr Wilson's evidence failed to match up to their expectations. We understand the tactical dilemma faced by the defence at trial, but the application to adduce expert evidence in this appeal is to be contrasted with cases where the defence at trial were wholly unaware of the availability of potentially relevant information. In reality, there is no reasonable explanation for the failure to adduce Professor Campbell's evidence, or evidence from a similarly qualified expert, before the jury.
85 In any event, we considered the possible impact of Professor Campbell's report. It does notdirectly address Dr Wilcox's reference to an authoritative textbook, upon which he said (and we
have no reason to doubt) the other experts in the case had relied. The report considers foursmall-scale studies which were put to Dr Wilcox in cross-examination, one of which is nowagreed to be irrelevant. The report acknowledges the limitations of the data in these studies, andconcedes, as Dr Wilcox asserted in his evidence, that it was unsafe to extrapolate too much fromsuch limited material. Indeed it supports Dr Wilson's view that the rarity of the condition and theoverall lack of relevant data means that no statistically sound mortality rate could safely be putforward. By implication therefore it suggests that this issue should not have been raised by thedefence at all.
86 We must return to the two principal matters relied on by Mr Gledhill. There is no statisticalevidence that a previously fit 31-year-old had a better chance of survival than anyone else. However, Dr Wilcox said as much in his evidence. The small-scale studies considered byProfessor Campbell make no observations either way about the relevance of age, and they donot in our judgment serve to undermine Dr Wilcox's evidence. His analysis of the deceased'sprospects of survival depended on much more than statistics. Nothing raised by ProfessorCampbell deals with the clinical assessments made by Dr Wilcox (and Professor Forrest). *354
87 The second matter relates to broad confidence intervals. These occur in relation to everysmall-scale study. Dr Wilcox commented in his evidence on the limitations of small-scale studiesas a basis for reaching any firm conclusion. On close analysis, Professor Campbell confirms thereservations expressed to the jury by Dr Wilcox.
88 In our judgment, this further statistical material is of very questionable assistance, andappears to us to add very little, if anything, to the “statistical” evidence which was available attrial, and deployed before the jury. From the Crown's point of view, the material was peripheral tothe issue of causation. To the extent that it was relevant, the material should have been adducedat trial. We were unpersuaded that it was necessary or expedient in the interests of justice ineither of these appeals for this evidence to be admitted. For these reasons the application to callevidence from Professor Campbell failed.
October 13. The Court of Appeal certified, under s.33(2) of the Criminal Appeal Act 1968 , that apoint of law of general public importance was involved in its decision, namely: “Does the offenceof gross negligence manslaughter comply with the European Convention on Human Rights ?”
Leave to appeal to House of Lords refused. *355
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have no reason to doubt) the other experts in the case had relied. The report considers foursmall-scale studies which were put to Dr Wilcox in cross-examination, one of which is nowagreed to be irrelevant. The report acknowledges the limitations of the data in these studies, andconcedes, as Dr Wilcox asserted in his evidence, that it was unsafe to extrapolate too much fromsuch limited material. Indeed it supports Dr Wilson's view that the rarity of the condition and theoverall lack of relevant data means that no statistically sound mortality rate could safely be putforward. By implication therefore it suggests that this issue should not have been raised by thedefence at all.