Misra & Anor, R v

These are appeals by Amit Misra and Rajeev Srivastava against their convictions on 11 April 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. After conviction, the judge certified: “the question of compliance of the crime of “gross negligence manslaughter” with the ECHR is one of some importance”, and that accordingly the case was fit for appeal.

The victim of manslaughter was Sean Phillips. He underwent unremarkable surgery to repair his patella tendon at Southampton General Hospital on 23 June 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 27 June. The appellants were senior house officers involved in the post-operative care of the deceased during the period beginning on the evening of 23 June until the afternoon of 25 June. 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.

The particulars of offence against each appellant, as amended, alleged in identical terms that he unlawfully killed Sean Philips:

“… 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.”

The prosecution case against the appellants did not arise from their failure to diagnose the precise condition from which the deceased was suffering. Given its rarity, of itself this may well not have amounted to negligence at all. Instead the Crown relied on the appellants’ failure to appreciate that their patient was seriously ill. He was showing classic signs of infection: raised temperature and pulse rate, and lowered blood pressure. These conditions were severe, and persistent, 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 suggestions by other members of the medical team on more than one occasion that further treatment was needed, none, or none that was appropriate, was provided. Blood results were available from the hospital computer from 9.47 on the Saturday evening. They were never obtained, nor acted upon, nor did either appellant make any enquiry whatever about the results. They did not seek help from senior colleagues. In short, infection was not diagnosed when it should have been, and not properly treated until it was far too late. The mistakes made by the appellants were elementary. Accordingly, they were negligent, and grossly so, and in consequence Sean Phillips died of toxic shock syndrome.

We must briefly summarise the main facts. While on a visit to London, Sean Phillips, a 31 year old, healthy man from Southampton, injured his patella tendon. He required an operation, which was carried out on Friday 23 June 2000 at Southampton General Hospital. The skin was cut above the knee. A metal wire was inserted. The wound was then stitched and the leg placed in a back slab plaster. No post-operative complications were anticipated. After a period in the recovery ward, the deceased was admitted to an orthopaedic ward (Ward Four).

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 23-24 June and 24-25 June. Dr Misra was on call during the day shifts, between 8 am and 5 pm on 24 and again on 25 June. Throughout Saturday 24 and Sunday 25 June, the deceased appeared to be alert and well-orientated and in possession of all his faculties. Unfortunately the operation wound became infected with staphylococcus aureus.

After the deceased’s admission to Ward Four, the immediate concern for his welfare focussed on 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 of Saturday, 24 June, it was observed that the deceased’s temperature and pulse had both increased markedly, when simultaneously his blood pressure was falling. He also vomited and suffered bouts of offensive diarrhoea.

At about midday on 24 June, the deceased’s temperature was recorded at 38.3^oC, his pulse measured at 145, and his blood pressure was 89/55. Dr Misra was contacted. He saw the patient. He prescribed intravenous fluids and agreed that oxygen should be provided. Despite a marginal improvement, the patient’s condition remained abnormal. At trial Dr Misra said that he ascribed the temperature rise to the trauma of the operation and the low blood pressure and high pulse to the diarrhoea and vomiting, which would have caused dehydration. He prescribed appropriate treatment, stopping the voltarol and ordering an alternative anti-emetic. He also asked that a stool sample should be taken if the diarrhoea continued. In the meantime, the patient was to be kept under observation.

Later that afternoon Dr Misra was asked to review the patient. His temperature was still in excess of 38, his pulse was running at about 130, and his blood pressure was unchanged, and low. 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 Misra disagreed. No cultures were taken. In his interview, Dr Misra said that he could not recall this part of the conversation and he doubted whether it had happened at all. If blood cultures had been ordered, it would have taken 48 hours for the results to become available. Therefore the absence of blood cultures did not contribute to the death: however the fact that they were not taken itself provided an indication that proper and full attention was not being paid to the deceased’s condition. Dr Misra went off duty at 5pm.

Dr Gandopadhyhay assumed responsibility for the patient. At 7pm, at the request of the ward sister, he reviewed the patient. Despite continuing alertness, the patient was in bad condition. Blood tests, to ascertain the blood count, and for consideration of cultures and sensitivities, were then taken. They were sent for analysis, with results normally available a couple 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 was attributable to any such infections. Pending the results of the blood tests, his provisional view was that the patient was suffering from gastro-intestinal infection. He made appropriate notes about 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 Gandopadhyhay described 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 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.

The blood tests were available on the hospital computer by 9.47 that evening. They showed a rise in creatinine levels, together with a high level of protein indicative of an acute inflammatory condition. In short, there was evidence of kidney damage and possible infection. These results were not seen by Dr Srivastava that night. He said that he had not been given a password to access the computer. He did not ask to see the results. They were not accessed by Dr Misra on the 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.

During the night of 24-25 June, at 11 pm, observations on the patient showed that his temperature was running at 39.1. His pulse rate was 135, and his blood pressure 90/50. At midnight his blood pressure declined further. The nurses summoned Dr Srivastava. To increase blood pressure he prescribed a plasma volume expander. This was started at 12.10 am. Further episodes 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 at 12.50. He advised additional plasma volume expander, and continuation of observation. The evidence from nursing staff suggested that they asked whether anything else could be done for the patient. Dr Srivastava responded that if the systolic blood pressure fell below 70 further action should be taken by calling in the registrar or the medical senior house officer on duty.

In interview Dr Srivastava said he could not recollect any such conversation, and that it would be unlikely for him to have spoken in these terms in the context of a figure as 70, for a patient with a base line of 100. This would be very low. In evidence, he said that he had to accept that conversation happened, commenting that he had spoken to one of the nurses, who must have passed 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 250 ml. 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 fine and well, cheerfully asking why he was under such constant observation. He acknowledged that he did not look at the observation chart. This, too, was an admitted, further mistake. The review ended at about 1.00am.

At 4.30am a member of the nursing team noted that the patient’s blood pressure was “still low and tachycardic”. At 6 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. He said nothing about his condition before leaving, and did not participate in the ward round.

Dr Misra came on duty on Sunday morning. At the end of his ward round, at about 11am, the ward sister asked him to review the patient, who was now complaining of a burning sensation in the knee. The knee was dry. No discharge or infection was apparent. And indeed, the pathologist confirmed that this remained the case at post mortem. However the patient was still suffering from diarrhoea. His blood pressure was 88/47, pulse 148, and his temperature 39.2^oC. Dr Misra decided that the fluid regime should be increased, in order aggressively to increase blood pressure. The fluid input rate was to be doubled. He said that he would have read the notes made by Dr Gandopadhyhay about blood tests. He knew that a request for them had been made. However he did not see any document containing the results, and he did not recollect asking 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.

The nursing handover took place at 1.30pm. The nurse going off duty at 1.30 was concerned that her patient was not improving and the nurse who took over from her was extremely concerned that her patient’s condition had deteriorated since she had last been on duty 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 already passed the point of no return, after which his death was inevitable. It is therefore unnecessary to provide any narrative of the subsequent events in this unhappy story.

The history of events between the time when the patient was admitted to Ward Four and the mid-afternoon of the Sunday were closely examined by expert witnesses called by the Crown. Dr Lowes is the microbiologist in the public health laboratory used by Southampton General Hospital. In his judgment the observations of the patient showed “severe sepsis”, to be treated with broad spectrum antibiotics until a clear alternative diagnosis was available.

Professor Forrest is a professor of forensic toxicology at Sheffield University. In his opinion the observations at midday on 24 June were attributable to a single obvious cause, infection. These observations should have been treated very seriously indeed by an orthopaedic senior house officer. “They should have triggered investigations by blood cultures and blood tests to check for kidney function, and by consulting colleagues as well as examination of the patient”. He also considered that if the patient continued to be ill, and the blood tests were not received, the doctor was obliged to “chase up for the results”. He criticised the failure to react to the severity of the deceased’s illness as shown by the repeated observations and his poor urine output, which he said he would expect a final year student to recognise. His examination of the clinical notes on the 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”.

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, he would confidently have expected him to leave the hospital alive if the nature of his condition had properly been recognised and appropriately treated.

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 were examining a third or fourth year medical student, and postulated the observations of the deceased’s condition following the operation on his knee, and the student failed to diagnose infection, he would have thought of failing the student on that basis alone. He suggested that every mother knew what a high temperature might mean, and if this were combined with a high pulse rate and low blood pressure, every doctor should be able to identify that the patient was seriously ill.

Dr Wilcox dealt with causation. He believed that if the deceased had been prescribed aggressive fluids and a broad spectrum antibiotic, he stood a very high chance of survival. It was very uncommon for death to result from TSST1. Furthermore, the particular patient had remained alert and orientated, which suggested that, at the outset, his body was responding well. His overall view was that the patient would have survived, if provided with appropriate treatment by lunchtime or the early afternoon on Sunday. When cross-examined he indicated that he was not sure that the deceased would have survived with proper medical treatment, but he believed on the balance of probability that he would have done. In re-examination he said that if appropriate treatment had been given at 12 o’clock on the Saturday, he was as certain as one could be that he would 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 further evidence under s 23 of the Criminal Appeal Act 1968. For present purposes however we note that statistical material did not feature as a significant aspect of the Crown’s case before the jury.

At the close of the prosecution case it was submitted to the judge that there was no case for either 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 in the judgment, for the moment simply recording our indebtedness to Langley J for his careful judgment on the issue. A distinct feature of the submission, however, was that the case should be withdrawn from the jury on the basis that the Crown’s case had failed on causation. The judge rejected the submission. His decision is criticised, essentially on the basis that the deceased may have died from TSST1 in any event, or from the developing consequences of the condition before negligence could be established against either appellant. In our judgment the submission that there was no case to answer on the causation issue was untenable. We have narrated a brief summary of the evidence, including the expert medical evidence. The causation issue was entirely for the jury. If the submission had been upheld, the judge would have usurped its function. His decision was right. We refuse the application for leave to appeal on this ground.

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 in good faith. Moreover, all those involved in the care of the patient had worked on the same erroneous basis. Even if the mistakes made individually were to be regarded as negligent, their extent did not justify the conclusion that the negligence was gross.

Dr Wilson, a consultant microbiologist at University College London, gave evidence on behalf of Dr Misra. He thought that by 12 o’clock on Saturday, the observations revealed a plainly abnormal situation. 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 pressure would then result in damage to organs such as the kidney, liver and pancreas and the lining of the gut. The patient needed far more fluids, to bring up his blood pressure and to protect his vital organs until the toxins could be stopped by removing the source of infection. The creatinine level suggested that by 8 o’clock 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 not say 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 quite regardless of treatment … he could not postulate when in his particular case he probably passed the point of no return, but again he would place it earlier than … Sunday lunchtime … he agreed that if he had been treated appropriately on Saturday afternoon then one was probably looking at a 3-5% level of risk of death.”

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 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.”

As already recorded, the jury convicted both defendants. It was argued before us as an independent ground for granting leave to appeal, that the verdicts were perverse. We have only recorded this argument for the purpose of completeness. Our view can be expressed in a few words. After a fair and balanced summing up, these verdicts were plainly open to the jury. The perversity argument is unmeritorious, and we shall summarily dismiss it.

We can now address the appellants’ submission on the question certified by Langley J.

Mr Michael Gledhill QC on behalf of Dr Misra submitted that manslaughter by gross negligence is an offence which lacks certainty. As presently understood, it requires the trial judge to direct the jury that the defendant should be convicted of manslaughter by gross negligence if they are satisfied that his conduct was “criminal”. Indeed, the effect of his argument was that it is a separate additionalingredient of this offence that the jury has to decide whether the defendant’s conduct amounted to a crime. Relying in particular on the Law Commission paper on Involuntary Manslaughter (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 this circularity which leads to uncertainty. Mr Gledhill drew attention to, and adopted for the purposes for his argument, the way in which the Law Commission identified the potential problems arising from linking the civil and the criminal law concepts of negligence where the allegation against the defendant arose from omission. This was such a case. “It is by no means certain that the scope of 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 a change, and if so, what the implications might be.” The relevant part of the Law Commission paper ends, “It is possible that the law in this area fails to meet the standard of certainty required by the European Convention on Human Rights (ECHR).” In Mr Gledhill’s submission this is an understatement: the standard of certainty is not met.

To develop his argument on uncertainty, Mr Gledhill focussed our attention on Article 7 of the ECHR, entitled “No punishment without law”, which provides:

“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.”

Mr Gledhill demonstrated that the Convention contained repeated references to expressions in English such as “prescribed by law”: in French, the same phrase reads “prevue par la loi”. We shall assume that the concepts are identical. Article 7 therefore sustains his contention that a criminal offence must be clearly defined in law, and represents the operation of “the principle of legal certainty”. (See, for example, Brumarescu v Romania [2001] 33 EHRR 35 at para 61 and Kokkinakis v Greece [1993] 17 EHRR 397 at para 52). The principle enables each community to regulate itself:

“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)

Mr Gledhill further emphasised that in Grayned v City of Rockford 408 US 104 the United States Supreme Court identified “a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” He pointed out that Lord Phillips MR had approved these dicta in The Queen (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ. 25, para 25.

We acknowledge the force of these submissions, but simultaneously emphasise that there is nothing novel about them in our jurisprudence. Historic as well as modern examples abound. In the seventeenth-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? 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)

Recent judicial observations are to the same effect. Lord Diplock commented:

“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.”

No further citation is required. In summary, it is not to be supposed that prior to the implementation of the Human Rights Act 1998, either this Court, or the House of Lords, would have been indifferent to or unaware of the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal liability are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe. That said, however, the requirement is for sufficient rather than absolute certainty.

The ambit of the principle, as well as its limitations, were clearly described in the Sunday Times v United Kingdom [1979] 2 EHRR 245. The law must be formulated:

“… 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.”

We can see the practical application of these comments in Handyside v United Kingdom [1974] 17 YB 228, where the Commission considered the definition of obscenity in the Obscene Publications Acts, 1959-1964. This offence is concerned with items which have a tendency to deprave and corrupt, a very general definition, certainly capable on forensic analysis of being criticised on the basis of uncertainty. The Commission nevertheless concluded that the offence was adequately described. In Wingrove itself, the court rejected the argument that blasphemous libel – that is, libel defined in very broad terms as “likely to shock and outrage the feelings of the general body of Christian believers” – was insufficiently accessible or certain.

Since the implementation of the Human Rights Act, 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 sufficiently certain to satisfy Articles 8 and 10 of the Convention (R v Smethurst [2001] EWCA Crim 772); that the offence of publishing an obscene article satisfies the requirements of Article 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 Article 7, 8 and 10 of the Convention (R v Goldstein [2004] 1 Cr App R 388). In each case the uncertainty argument was rejected. In Goldstein itself, at p. 395, Latham LJ commented:

“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.

In further argument Mr Gledhill relied on Article 6(1) of the ECHR which entitles a defendant to:

“… 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.

After he had fully considered the recent decision of the House of Lords in R v G and Another [2004] 1 AC 1034, Mr Gledhill deployed an additional argument which was not before Langley J. In essence, he submitted that with the exception of causing death by dangerous driving, no serious criminal offence could be committed without mens rea. He relied on what Lord Bingham, at paragraph 32, described as a “salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting 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 was contravened.

Mr Gledhill’s submissions were adopted and supported by Mr Kennedy. As we shall see, save for the recent additional argument based on R v G & Another, they were also and most cogently advanced by Lord Williams of Mostyn QC, and rejected by the House of Lords in R v Adomako [1995] 1 AC 171. Mr Gledhill, in effect, redeploys the same argument on the basis that, if the ECHR 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.

Our analysis of these submissions begins with the simple proposition that at common law a wide variety of unlawful homicides which are not murder are classified as manslaughter. “… Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions …” (per Lord Atkin in Andrews v DPP [1937] AC 576 at 581). However although the difficulty of 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 the specific intention to cause death or serious bodily harm and therefore lacked the “malice aforethought” required for murder. In view of some of the more enthusiastic submissions made by Mr Gledhill in exchanges with the court, notwithstanding the risk of stating the obvious, we must observe, first, that involuntary manslaughter does not extend criminal liability to deaths caused by accident, or indeed to deaths which occur without some recognised element of fault by the offender, and second, that the existence of the offence itself engages the right to life and its protection by the criminal law.

We are not here immediately concerned with involuntary manslaughter which falls within the category of death resulting from what is sometimes described as an unlawful act likely to cause bodily harm, or alternatively, from an unlawful and dangerous act. (On this topic generally, see the discussion in Smith and Hogan, Criminal Law, 10th edition at pp. 378-385). Professor Sir John Smith QC explained that in this category of manslaughter (that is, causing death by an unlawful and dangerous act) the ingredient of unlawfulness “must arise otherwise than through negligence”.

“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.”

This is the background against which the offence of involuntary manslaughter by gross negligence must be addressed. The offence has long been recognised by the common law, and it has recently been examined in the House of Lords in Adomako. An account of its historic development is therefore unnecessary.

A number of problematic matters were considered in Adomako. First, as a matter of ordinary English, manslaughter by gross negligence and manslaughter by recklessness sound very similar. It was therefore arguable that, in reality, they amounted to the same offence, rather than two distinct forms of involuntary manslaughter. Second, given that death could and did arise from reckless 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 the offence of manslaughter by recklessness (and possible also on manslaughter by gross negligence) of the well-known and troublesome decisions of the House of Lords in relation to the meaning of recklessness in criminal statutes. (Metropolitan Police Commissioner v Caldwell [1982] AC 341, and R v Lawrence [1982] AC 510). The problem was further complicated by the later decision of the House of Lords in R v Seymour [1983] 2 AC 493, where the indictment charged manslaughter by reckless driving and it was said that recklessness in the sense described in Caldwell and Lawrence applied to all offences, including manslaughter, “unless Parliament has otherwise ordained”. It is sufficient to note the answer given to the certified question by Lord Roskill in the only speech in the House of Lords:

“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).

The fourth matter for consideration was linked with the fact that Adomako’s unsuccessful appeal to the Court of Appeal Criminal Division had been decided at the same time as successful appeals by Prentice and Sullman, who were also doctors whose negligence was said to have caused the death of a patient (R v Prentice and Others [1994] QB 302). The convictions of Prentice and Sullman were quashed on the basis that the judge’s direction meant that the jury did not consider any “excuses” or relevant mitigating circumstances when deciding whether gross negligence had been established. That error did not apply to Adomako, to which we must now return.

Adomako was an anaesthetist who was convicted of manslaughter by gross negligence. His patient underwent an operation to his eye. During the course of the operation an endotracheal tube became disconnected. The patient was deprived of oxygen. Adomako’s alleged negligence arose from his failure to observe or respond to obvious signs that a disconnection had taken place and that the patient had stopped breathing. At trial it was accepted that he had been negligent in the sense that he had failed to observe appropriate professional standards to a patient to whom he owed a duty of care. The issue was whether his conduct fell within the ambit of manslaughter by gross negligence.

In the House of Lords, the earlier authorities were fully reviewed. Reference was made to the Consultation 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 Mostyn QC, on behalf of the appellant, were directed at establishing the absence of any “logical or jurisprudential 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 possible impact of Lawrence [1982] AC 510 and Seymour [1983] 2 AC 493. Lord Williams suggested the single test of recklessness for all cases of involuntary manslaughter, and mounted a sustained criticism of the offence for its lack of clarity and certainty, and its circularity, because the jury was directed to convict only if they thought that a crime had been committed. Accordingly the offence of manslaughter by gross negligence could not properly be sustained.

The decision of the House of Lords in Adomako clearly identified the ingredients of manslaughter by gross negligence. In very brief summary, confirming Andrews v DPP [1937] AC 576, the offence requires first, death resulting 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 risk of death, and third, that the circumstances were so reprehensible as to amount to gross negligence.

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 Bateman, Lord Hewitt CJ 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 Stone [1977] QB 554 and West London Coroner, ex parte Grey [1988] QB 467 reference was made to risks in broader terms, extending to health and welfare. Although Lord Mackay 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 parte Grey. It is also striking that Lord Mackay did not expressly adopt or approve the broader formulation of risk made by Lord Taylor CJ in Prentice. Since Adomako, this issue has been addressed in this court, in R v Singh (Gurphal) [1999] CLR 582 and the Divisional Court in Lewin v CPS, unreported, 24 May 2002. In Gurphal 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.

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, the Director of Public Prosecutions looks for evidence of an obvious risk of death, and that, if the extent of the risk were limited to the obvious risk of serious injury, and no more, prosecution would not follow.

The editors of Blackstone’s Criminal Practice suggest that the law needs clarification, and that, if it were clarified, some “degree of symmetry” between murder and manslaughter would be achieved if, for the purposes of gross negligence manslaughter, the risk should extend to grievous bodily harm. Professor Smith took the contrary view, suggesting that “if we are to have an offence of homicide by gross negligence at all, it seems right that it should be…limited. The circumstances must be such that a reasonably prudent person would have foreseen a serious risk, not merely of injury, even serious injury, but of death”.

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 to prosecute, but also to the risk of conviction of manslaughter. In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to the risk 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 an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life.

Adomakofurther explained that with involuntary manslaughter, notwithstanding Seymour, recklessness as explained in the Lawrence/Caldwell sense had no application. The use of the word “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 parte Grey as examples of an acceptable use of the word “reckless” in its ordinary connotation. In Stone, Geoffrey Lane LJ described examples of “recklessness”, and reflected the observations of Lord Atkin in Andrews that reckless “was an appropriate epithet for the very high degree of negligence required before the defendant could be convicted of manslaughter by gross negligence.” Although the word “reckless” might be deployed in summing up to the jury, its use simply reflected one way of describing the ingredients of the offence. At the end of his speech Lord Mackay’s language was quite unequivocal:

“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.”

The point of law certified for the decision of the House of Lords was answered:

“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.

It is convenient now to address the argument that the decision in R v G and Another should lead us to reassess whether gross negligence manslaughter should now be replaced by and confined to reckless manslaughter. As we have shown, precisely this argument by Lord Williams of Mostyn was rejected in Adomako. We also note, first, that Parliament has not given effect to possible reforms on this topic discussed by the Law Commission and, second, notwithstanding that Adomako was cited in argument in R v G and Another, it was not subjected to any reservations or criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in R v G he was not addressing the meaning of “reckless” in any other statutory or common law context than section 1(1) and (2) of the Criminal Damage Act 1971. In these circumstances, although we gave leave to Mr Gledhill to amend his grounds of appeal to enable him to deploy the argument, we reject it.

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] QB 796 led to the unacceptable conclusion that manslaughter by gross negligence did not require proof of any specific state of mind, and that the defendant’s state of mind was irrelevant. In our judgment the submission is based on a narrow reading of the decision that a defendant may properly be convicted of gross negligence manslaughter in the absence of evidence as to his state of mind. However when it is available, such evidence is not irrelevant to the issue of gross negligence. It will often be a critical factor in the decision (see R (Rowley) v DPP [2003] EWHC 693). In Adomako itself, Lord Mackay directed attention to “all” of the circumstances in which the defendant was placed: he did not adopt, or endorse, or attempt to redefine the list of states of mind to which Lord Taylor CJ referred in Prentice, which was not in any event “exhaustive” of possible relevant states of mind. It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which his breach of duty occurred. In each case, of course, the circumstances are fact-specific.

Mr Gledhill nevertheless contended that even so, the problem of mens rea remains. This, he argued 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 to cause either, and death results, he would be guilty of murder. If he intends limited injury, and causes death, he would be guilty of manslaughter in any event. We are here concerned with the defendant who does not intend injury, but who in all the contemporaneous circumstances is grossly negligent. As a 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 the standards 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 culpability required before criminal liability for the defendant’s actions may be established. In Sweet v Parsley [1970] AC 132, Lord Reid explained that there were occasions when gross negligence provided the “necessary mental element” for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for gross negligence provides the necessary element of culpability.

We can now return to the argument based on circularity and uncertainty, and the application of Articles 6 and 7 of the ECHR. The most important passages in the speech of Lord Mackay on the issue of circularity read:

“… 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.”

Mr Gledhill suggested that this passage demonstrated that an additional specific ingredient of this offence was that the jury had to decide whether the defendant’s conduct amounted to a crime. If the jury could, or was required to, define the offence for itself, and accordingly might do so on some unaccountable or unprincipled or unexplained basis, to adopt Bacon, the sound given by the law would indeed be uncertain, and would then strike without warning. Mr Gledhill’s argument then would be compelling.

Looking at the authorities since Bateman, the purpose of referring to the differences between civil and criminal liability, whether in the passage in Lord Mackay’s speech to which we have just referred, or in directions to the jury, is to highlight that the burden on the prosecution goes beyond proof of negligence for which compensation would be payable. Negligence of that degree could not lead to a conviction for manslaughter. The negligence must be so bad, “gross”, that if all the other ingredients of the offence are proved, then it amounts to a crime and is punishable as such.

This point was addressed by Lord Atkin in Andrews at p. 582, when he referred to Williamson (1807) 3 C&P 635:

“....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.”

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. 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.

On examination, this represents one example, among many, of problems which juries are expected to address on a daily basis. They include equally difficult questions, such as whether a defendant has acted dishonestly, by reference to contemporary standards, or whether he has acted 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 and careful driver. These examples represent the commonplace for juries. Each of these questions could be said to be vague and uncertain. If he made enquiries in advance, at most an individual would be told the principle of law which the jury would be directed to apply: he could not be advised what a jury would think of the individual case, and how it would be decided. That involves an element of uncertainty about the outcome of the decision-making process, but not unacceptable uncertainty about the offence itself.

In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. 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.

After Lord Williams’ sustained criticism of the offence of manslaughter by gross negligence, the House of Lords in Adomako clarified the relevant principles and the ingredients of this offence. Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed.

This conclusion in effect disposes of the Article 6 argument. It is well-understood in the European Court, and accepted, that a jury is not required to give reasons for its decision. (See, for example, Saric v Denmark Application 31913/96.) In the present case, by reference to the 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 to consider, and we, by reference to the same documents, can examine the basis on which they were convicted. The jury concluded that the conduct of each appellant in the course of performing his professional obligations to his patient was “truly exceptionally bad”, and showed a high degree of indifference to an obvious and serious risk to the patient’s life. Accordingly, along with 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.

We must now turn to a separate application on behalf of the appellants to call fresh evidence.

At the conclusion of the oral argument, we indicated our decision that the application to call fresh evidence from Professor Michael Campbell was refused. We shall now give our reasons.

Professor Campbell is Professor of Medical Statistics at the University of Sheffield. His speciality is statistics, not medicine. His report is dated 2nd February 2004. It was not commissioned until after the trial and convictions of the appellants. The focus of the report, which we have studied, is statistical material relating to mortality rates for staphylococcal toxic shock syndrome. The essential submission on behalf of the appellants is that this report demonstrates that in relation to the issue of causation of death the jury at trial was presented with an unrealistically high estimate of the deceased’s chances of survival.

Langley J correctly directed the jury that one of the matters about which they had to be sure before the appellants could be convicted was that such failure or failures as were proved against each individually was a substantial, even if not the sole or the major cause of death. His directions 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 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.”

We must briefly address the way in which evidence of a statistical nature came to be before the jury. The initial evidence tendered on behalf of the Crown did not refer to it. However, some three weeks before trial, the Crown received the defence report from Dr Wilson. This raised the possibility that the deceased’s illness could reasonably have been taken for a different type of infection (clostridium difficile) to that which he did in fact suffer (TSST1). The correct management for this form of infection would have avoided the use of antibiotics. However, in addition, the report set out statistics relating to toxic shock syndrome, which included one study of thirty-five cases in the United Kingdom prior to 1985, where a fatality rate of 16.7% was recorded. 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 from Professor Cartwright, a microbiologist, who was not ultimately called to give evidence before the jury, postulated a fatality rate of “less than 5%”.

Following receipt of the report from Dr Wilson the Crown instructed and obtained a report from Dr Wilcox. The trial began on 3rd March 2003. His report was served on 6th March. As a result of legal argument, the calling of evidence was postponed until 10th March. This report dealt largely with 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 with staphylococcal toxic shock syndrome is low (~4%), although this rate is higher in patients with non-menstrual forms of the disease.” Dr Wilcox appended an extract from a textbook, “Principles and Practice of Infectious Diseases”, published in 2000, which showed a fatality rate in non-menstrual cases of “about 3%”. He described this textbook as “the authoritative textbook used by clinical microbiologists in the UK and the US”.

During the course of the Crown’s evidence, but before Dr Wilcox gave evidence, a further report 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%.

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%. He indicated that different reports showed different figures. This evidence was not initially challenged by Mr Gledhill, and when Mr Coonan QC, then acting for Dr Srivastava cross-examined Dr Wilcox, he too referred to the 5% 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 much higher fatality rate than 5%. 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% 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.

Professor Forrest gave no evidence of a statistical nature, and he was not cross-examined on the subject.

We have recorded, and shall not repeat, a summary of the evidence given by Professor Forrest and Dr Wilcox on the causation issue, based on their analysis of the clinical evidence, the standards of management, and remaining matters (other than statistical evidence) which bore on this question.

When Dr Wilson gave evidence for the defence, he explained that he thought that the fatality rate was speculative, because the condition from which the deceased suffered was so rare that there was a lack of verifiable information on which to base properly drawn conclusions. He mentioned a non-menstrual fatality rate of 11% (which had not appeared in his report) and was thus suggesting a higher fatality rate than Dr Wilcox. He did however point out that this rate was based on a small number of cases. Having stated that there was a greater than a 3% to 5% risk of death in any patient suffering from toxic shock syndrome, he said that as time passed, while the patient suffered from the condition without treatment, the risk of fatality increased.

This provides the context in which we considered the report from Professor Campbell. The issue of statistics had been introduced and pursued by the defence. It had not formed any positive part of the Crown’s case, although when cross-examined, one of the Crown experts, Dr Wilcox, gave evidence on the topic. At trial, the balance of evidence from both sides seemed to suggest a figure in the order of 5% as the appropriate overall statistical figure for fatality rates.

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% 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 thirty-six cases, where the subjects were aged between ten months and seventy-four 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 on the mortality rates among those encompassed in this study who were treated appropriately.

Professor Campbell did not consider that there were sufficient data to express an opinion whether 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 any estimates. He suggested that it was always dangerous “to try to extrapolate a medical model without empirical evidence”. He agreed that Dr Wilcox was correct to state (as he did) that there was no relevant statistical information about the risks attaching to a thirty-one year old man, suffering from TSST1, who is properly treated. However he pointed out that there was no individual study which highlighted that younger people were at a lower risk of death. He expressed the view that the experts’ conclusions at trial did not appear to be drawn from the published studies, and that some of the opinions expressed by them were unsupported by evidence. However he made no reference to the textbook, “Principles and Practice of Infectious Diseases”, upon which Dr Wilcox based his overall figures and to which he referred when this issue was explored.

This material led Mr Gledhill to submit that Professor Campbell’s evidence was important in two respects. First, it showed that there was no statistical evidence that age was a prognostic factor, or that ability to cope with toxins was related to age. Second, the breadth of the confidence intervals described by Professor Campbell undermined the statistical evidence given by Dr Wilcox. This evidence would significantly increase the prospect that the jury might have been unable to be sure of any causal link between the absence of appropriate treatment and Sean Phillips’ death. Mr Kennedy, for Dr Srivastava, supported these submissions, particularly in relation to what he characterised as the “fit and healthy mantra”.

The Crown’s position before us, in essence, was that this issue, so far as it had any relevance at all, was introduced and pursued at trial by the appellants, and that all the evidence on the issue should have been raised then. In the result, the balance of evidence available to all sides at trial suggested that a figure in the order of 5% provided the appropriate overall base figure for fatality rates. The material provided by Professor Campbell would not, it was argued, provide any basis for allowing the appeals and the statistical material failed to address the clinical aspects of the causation issue.

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 to mount a case based on expert evidence which could and should have been advanced before the jury, the trial process would be subverted. Therefore the absence of any reasonable explanation for failing to adduce such evidence is a highly material factor to the exercise of the court’s powers under s 23. Nevertheless this would not provide an absolute bar or prohibit the reception of fresh evidence if this were necessary or expedient in the interests of justice.

The narrative of events demonstrates that evidence of a statistical nature was introduced into the case, and eventually the trial, by the defendants. When 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.

In any event, we considered the possible impact of Professor Campbell’s report. It does not directly 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 four small-scale studies which were put to Dr Wilcox in cross-examination, one of which is now agreed to be irrelevant. The report acknowledges the limitations of the data in these studies, and concedes, as Dr Wilcox asserted in his evidence, that it was unsafe to extrapolate too much from such limited material. Indeed it supports Dr Wilson’s view that the rarity of the condition and the overall lack of relevant data means that no statistically sound mortality rate could safely be put forward. By implication therefore it suggests that this issue should not have been raised by the defence at all.

We must return to the two principal matters relied on by Mr Gledhill. There is no statistical evidence that a previously fit, thirty-one 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 by Professor Campbell make no observations either way about the relevance of age, and they do not in our judgment serve to undermine Dr Wilcox’s evidence. His analysis of the deceased’s prospects of survival depended on much more than statistics. Nothing raised by Professor Campbell deals with the clinical assessments made by Dr Wilcox (and Professor Forrest).

The second matter relates to broad confidence intervals. These occur in relation to every small-scale study. Dr Wilcox commented in his evidence on the limitations of small-scale studies as a basis for reaching any firm conclusion. On close analysis, Professor Campbell confirms the reservations expressed to the jury by Dr Wilcox.

In our judgment, this further statistical material is of very questionable assistance, and appears to us to add very little, if anything, to the “statistical” evidence which was available at trial, and deployed before the jury. From the Crown’s point of view, the material was peripheral to the issue of causation. To the extent that it was relevant, the material should have been adduced at trial. We were unpersuaded that it was necessary or expedient in the interests of justice in either of these appeals for this evidence to be admitted. For these reasons the application to call evidence from Professor Campbell failed.

These appeals are dismissed.

An application to certify a point of law of general importance was adjourned for counsel to furnish the court with written submissions.