Medicine, mistakes and manslaughter: a criminal combination?

1. Medicine, mistakes and manslaughter: a criminal combination? Dr Oliver Quick University of Bristol

2. R v Bateman (1925) 19 Cr App R 8 • In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘‘culpable’’, ‘‘criminal’’, ‘‘gross’’, ‘‘wicked’’, ‘‘clear’’, ‘‘complete’’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.

3. R v Adomako [1994] 3 All ER 79 • 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.

4. Human rights? • Article 7 ECHR • “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.”

5. Certainty and legality • “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.” Francis Bacon, A Treatise on Universal Justice

6. Human rights? • Art 6 ECHR requires a: • “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

7. R v Misra, Srivistava [2005] 1 Cr App R 21 • “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.”

8. Misra contd… • “In our judgment the law is clear…The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.”

9. Gross vagueness? • “Well I think it’s difficult to quantify but you know you are looking at something which needs to be punished by the criminal law. So it’s got to be something that really stands out as being something that ordinary people wouldn’t say ‘Well we all make mistakes’. Ordinary people would say that’s shocking. You know it’s got to be gross.”

10. Cases on the cusp… • “you could have made the decision not to prosecute and it would have been a proper decision, and you could have made the decision to prosecute… we thought it probably was gross negligence but we thought it was close to the borderline…and there were some in our office who said prosecute and some who said don’t…I wouldn’t say it was clear cut and we agonised over the decision to prosecute.”

11. Expert evaluation • “So one was saying yes and one was saying no, so I had to get a third expert and the third expert said well I’m really not sure. So then we had a conference and all three experts were then saying ‘Yeah okay, it’s gross negligence’. I decided I would follow it up by asking them in writing to confirm their position before we took the case to court given the conflicting evidence before, and when they eventually arrived two of them were still saying ‘no, with further thought it’s still not gross negligence’.”

12. Search for subjective fault • “I mean, the law says it’s an objective test, but in reality I can’t see how we would bring a prosecution without an element of subjective recklessness. I mean even if it’s really a case where we say it’s so blindingly obvious that the person must have realised and therefore are subjectively…even if there’s no direct evidence of subjective recklessness…but it may be so blindingly obvious that anyone must have realised, it’s simply not believable…”

13. The way ahead… • A specific crime? • Reviving recklessness?