In R v Mishra (2005) two doctors were charged with gross negligence manslaughter for failing to take proper care of a patient who was recovering from an operation (post-op). The patient died from a wound that resulted from the operation – there was an infection and the patient died from the complications that followed. The test in R v Adomako (1994) was applied and the doctors were convicted.
The doctors appealed on the grounds that the fourth limb in the test in R v Adomako (1994), i.e. that the defendant’s conduct must be so bad that a crime could be inferred was circular and required the jury to set its own level of criminality when what was criminal or otherwise was something that should be decided by the law and not the jury and was in breach of articles 6 & 7 of the European Convention on Human Rights which reads as follows:-
Right to a fair trial
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
- Everyone charged with a criminal offence has the following minimum rights:
(a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) To have adequate time and facilities for the preparation of his defense;
(c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.
No punishment without law
- 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.
- This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.
The conviction was upheld. It was decided that the question for the jury was not whether the defendants conduct was so bad that that it amounted to a crime but rather if it was so negligent or grossly negligent that in amounted to a crime which was essentially a question of fact (something that is to be decided by the jury) and not a question of law.
Copyright © 2018 by Dyarne Ward