R v Misra [2005]

1. Facts:

• A patient developed an undiagnosed infection and later died of toxic shock.

• The two doctors involved failed to inquire about test results or perform necessary blood tests.

• Both doctors were convicted of gross negligence manslaughter (GN manslaughter).

2. Outcome:

• The Court of Appeal confirmed that the precedent set by R v Adomako remains the current law on gross negligence.

• The doctors argued that the Adomako test was inconsistent with the House of Lords' decision in R v G and that it violated Article 7 of the ECHR, which requires legal certainty.

• The argument was dismissed, as the court found no inconsistency with Adomako. The test for gross negligence is a matter of fact, not law.

3. Impact and Analysis:

• Confirmation of Adomako:

◦ The court upheld Adomako's test for gross negligence, emphasising that it remains applicable. The test assesses whether the breach of duty was so severe that it amounted to a criminal act.

• Inconsistency with Article 7 ECHR:

◦ The doctors' claim that the legal standards were too vague and inconsistent with Article 7 ECHR was dismissed. The court maintained that the test demands a sufficient degree of certainty, but not absolute certainty.

• Inconsistency with Article 6 ECHR:

◦ Jury are just applying a principle of law 

◦ Not a reasoned, case-specific judgement

◦ Horder's Critique:

▪ Horder suggested that the distinction between gross negligence and ordinary negligence might be minimal, leading to concerns about the clarity and application of the law.

The degree of vagueness was held to be acceptable by the court 

• Practical Concerns:

◦ The decision highlights ongoing debates about the clarity and fairness of the gross negligence standard, particularly regarding the rights of professionals to understand the boundaries of criminal liability.