Gross Negligence Manslaughter: Compatibility with European Convention on Human Rights, Article 7

DOI10.1350/jcla.69.2.126.63514
Date01 April 2005
Published date01 April 2005
Subject MatterArticle
5A(1) of the 1997 Act now states that a court before which a person
(the defendant) is acquitted of an offence may, if it considers it neces-
sary to do so to protect a person from harassment by the defendant,
make an order prohibiting the defendant from doing anything described
in the order. In this case, the appellant did not contest the initial
conviction for three offences of harassment, neither did she appeal
against the imposition of the restraining order, which had been imposed.
By reaching the decision it did in this case, the court has decided that a
restraining order can be worded to prohibit more generalised abusive
action as opposed to restricting itself to prohibiting specif‌ic courses of
conduct.
Chris Newman
Gross Negligence Manslaughter: Compatibility with
R v Misra and Srivastava [2004] EWCA Crim 2375
The appellants were convicted of manslaughter in April 2003. The
victim underwent a routine operation in June 2000, and developed a
bacterial infection which went untreated. He died from toxic shock
syndrome a few days after the operation. The appellants were senior
house off‌icers involved in the post-operative care of the victim. It was
alleged that their treatment of the victim was grossly negligent, and that
it caused his death.
The prosecution case was that classic signs of infection were not
diagnosed and acted upon when they should have been.
The applications of the appellants for leave to appeal on the issues of
causation, and of the perversity of the verdicts, were refused by the
Court of Appeal. The appeal proceeded, inter alia, on the question
certif‌ied by the trial judge of the compatibility of the offence of gross
negligence manslaughter with Article 7 of the European Convention on
Human Rights. Article 7 states:
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.
The issue was whether the offence was def‌ined with suff‌icient certainty
for Article 7 purposes.
H
ELD
,
DISMISSING THE APPEALS
:
1. The offence of gross negligence manslaughter was not uncertain in
a manner that would offend Article 7.
2. The ingredients of the offence were clearly set out by the House of
Lords in R v Adomako [1995] 1 AC 171 and were such that a
hypothetical citizen could be advised as to what they were.
The Journal of Criminal Law
126

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