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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Misra & Anor, R v [2004] EWCA Crim 2375 (08 October 2004) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2004/2375.html Cite as: [2005] 1 Cr App R 328, [2004] EWCA Crim 2375, [2005] 1 Cr App R 21 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
MR JUSTICE LANGLEY AND A JURY
Strand, London, WC2A 2LL |
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B e f o r e :
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE TREACY
and
THE HONOURABLE MR JUSTICE BEAN
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Regina |
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- v - |
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Amit Misra |
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Regina |
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- v - |
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Rajeev Srivastava |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr A. Kennedy for the appellant Srivastava
Mr P. Mott QC and Mr H. Jenkins for the Crown
Mr D. Perry for the Attorney General
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Crown Copyright ©
Lord Justice Judge:
"… by gross negligence in that:
(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 the nature of Sean Phillips' illness which he should have identified as a severe infection requiring aggressive supportive therapy and antibiotics, and to take steps to ensure that he 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."
"… duty and breach of duty - … will be the starting point to establish civil liability to pay damages. But as you would expect, and is the law, the prosecution must make you sure of something much more, and much more serious, than that before a person can be convicted 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, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed. If you do conclude that you are sure that either or both of the defendants have been in breach of their duty of care in their treatment of Sean, you must therefore go on to consider the nature of that carelessness or 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 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."
"7(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that 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 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 p. 150 and 151,
"There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective. ... I use retrospective in the sense of authorising people being punished for what they did before the Act came into force."
"with reference to the norms prevailing in the society in which they live. That generally entails that the law must be adequately accessible – an individual must have an indication of the legal rules applicable in a given case – and he must be able to foresee the consequences of his actions, in particular to be able to avoid incurring the sanction of the criminal law." (SW v United Kingdom: CR v United Kingdom [1995] 21 EHRR 363)
"For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if 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 be pronounced 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 p. 244 and 248, from Aphorism 8 and Aphorism 39 – A Treatise on Universal Justice.)
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 the public good than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind." (Commentaries, 3rd edition, 1769, vol 1 p.62)
"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 advance what are the legal consequences that will flow from it. (Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at p. 638)."
In Fothergill v Monarch Airlines Ltd [1981] AC 251 at 279 he repeated the same point:
"Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible."
More tersely, in Warner v Commissioner of Police for the Metropolis [1969] 2 AC 256 at p. 296, Lord Morris 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 to judicial precedent issued by Lord Gardiner LC on behalf of himself and the Lords of Appeal in Ordinary on 26th July 1966 [1966] 1 WLR 1234.
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual case. It provides at least some 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 to follow earlier decisions of the House of Lords, their Lordships expressly bore in mind:
"… the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law."
"… with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee to a degree that is reasonable in the circumstances, the consequences which any given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unobtainable. Again, whilst certainty is highly desirable, it may bring in its train excessive 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 lesser extent, 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 uncertainty in the process by which it is decided whether the required ingredients of the offence have been established in an individual case. The point was highlighted in Wingrove v United Kingdom [1996] 24 EHRR 1:
"It was a feature common to most laws and legal systems that tribunals may reach different conclusions, even when applying the same laws to the same facts. This did not necessarily make the laws inaccessible or unforeseeable."
"The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour. … A citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance."
In our judgment, the incorporation of the ECHR, while providing a salutary reminder, has not effected any significant extension of or change to the "certainty" principle as long understood at common law.
"… a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The developing jurisprudence in relation to Article 6 suggests that a reasoned decision is a concomitant to a fair hearing. The jury provides a verdict. It is not required to explain how it came to its verdict. When deciding whether manslaughter by gross negligence has been proved, the nature 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. Mr Gledhill submits that this is no more and no less than an issue of law. The absence of a reasoned judgment on questions of law engages the right to a fair trial, and the absence of reasons diminishes or extinguishes that entitlement.
"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 or 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, 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 of negligent performance and acts which are unlawful for some other reason, is at least intelligible and, in view of the established distinction between civil and criminal negligence, a necessary limitation."
"Where manslaughter is charged and the circumstances are that the victim was killed as a result of the reckless driving of the defendant on a public highway, the trial judge should 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, the risk of death being caused by the manner of the defendant's driving must be very high". The reference to "the risk of death" should be noted: so should the recent departure of the House of Lords from its own decision in Caldwell (R v G and Another [2004] 1 AC 1034).
"While therefore I have perhaps said in my view it is perfectly open to a trial judge to use the word 'reckless' if it appears appropriate in the circumstances of a particular case, as indicating the extent to which the defendant's conduct must deviate from that of a proper standard of care, I do not think it right to require that this should be done, and certainly not right that it should incorporate the full detail required in Lawrence."
"In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence tests set out by the Court of Appeal in the present case, following Rex v Bateman 19 Cr App R 8, and Andrews v Director of Public Prosecutions [1937] AC 576, and that it is not necessary to refer to the definition of recklessness in Reg. v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word 'reckless' in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case."
The result of the appeal was that the continuing existence of the offence of manslaughter by gross negligence was confirmed. The attempt to replace manslaughter by gross negligence with manslaughter by recklessness was rejected.
"… The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that, to a certain extent, this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal…The essence of the matter which is supremely a jury question is 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 their judgment to a criminal act or omission."
"....where a man who practiced as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died." To substantiate that charge – namely, manslaughter – Lord Ellenborough said, "The prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention." The word "criminal" in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Bateman [1925] 18 Cr. App. R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case .... I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime."
Fresh Evidence
"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 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."