Crime XXXXXXXVIII - Gross Negligence Manslaughter X
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:-
ARTICLE
6
Right
to a fair trial
1. 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.
2. Everyone
charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3. 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.
ARTICLE
7
No
punishment without law
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.
2. 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
© 2019 by Dyarne Ward
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