R v Misra and Srivastava [2005] 1 Cr App R 328
Whether the elements of gross negligence manslaughter were sufficiently certain.
Facts
Two doctors were convicted of gross negligence manslaughters when their post-operative patient became infected with a staphylococcus aureus infection that was left untreated. The infection led to a build-up of poison, which culminated in toxic shock syndrome from which he died. The doctors were responsible for the post-operative care of the patient during the period at which the infection began. It was alleged that each was grossly negligent in respect of the medical treatment provided to the patient, such as not recognising classic symptoms of the infection, declining to take culture samples and not following up with relevant tests.
Issues
The defendants were convicted of gross negligence manslaughter. On appeal, the defendants raised the defence that the test for gross negligence put to the jury was circular and uncertain, and thus fails to meet the standards of certainty required under Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [‘ECHR’].
Decision/Outcome
The test of gross negligence manslaughter is clear and involves no uncertainty. The elements of the crime have been defined in R. v Adomako (1994) as requiring (1) death resulting from a negligent breach of the duty of care owed by the defendant to the deceased, (2) the victim was exposed to risk of death due to this negligent breach, and (3) the circumstances were so reprehensible to amount to gross negligence. The jury’s determination of whether the defendants’ negligence amounted to ‘gross negligence’ is a question of fact, not of law. Although there is some element of circularity, this does not result in an uncertainty which contravenes Article 7 of the ECHR. Accordingly, the Court dismissed the appeals.
Updated 20 March 2026
This case summary remains broadly accurate. R v Misra and Srivastava [2004] EWCA Crim 2375 (reported at [2005] 1 Cr App R 328) is still good law and continues to be cited as the leading authority confirming the compatibility of gross negligence manslaughter with Article 7 ECHR. The Adomako [1995] 1 AC 171 framework it describes remains the foundation of the offence in England and Wales.
Readers should be aware of one important subsequent development: the Supreme Court in R v Sellu [2016] EWCA Crim 1716 and, more significantly, R v Rose [2017] EWCA Crim 1168 refined the approach to the duty of care element in professional contexts. Additionally, the Law Commission has continued to review the law of involuntary manslaughter, and some academic and judicial commentary has questioned the residual circularity in the gross negligence test, though this has not displaced Misra or Adomako as binding authority. The article’s summary of the three elements drawn from Adomako is a slight simplification: the House of Lords in Adomako identified the risk as one of death specifically, which the article does reflect, but readers should consult the full judgment for the precise formulation. Overall, the core legal principles stated in this article remain current.
