R v Adomako [1994] UKHL 6

House of Lords
Between
RAppellantAdomakoRespondent
Before
Lord Mackay of ClashfernDate 30 June 1994
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 20th day of May 1993 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered. That the question certified by the Court of Appeal (Criminal Division) on the 15th day of June 1993 be answered with a declaration that:"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 test set out by the Court of Appeal in the present case following Rex. v. Bateman 19 Cr. App. R.8 and Andrews v. DPP [1937] AC 576 and it is not necessary to refer to the definition of recklessness in R.- v. Lawrence [1982] A.C. 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";And it is also further Ordered, That there be no order as to the Costs of the said Appeal.Cler: Parliamentor:

Judgment: 30 June 1994

HOUSE OF LORDS

REGINA

v.

ADOMAKO (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

The Lord Chancellor Lord Keith of Kinkel Lord Goff of Chieveley Lord Browne -Wilkinson Lord Woolf

LORD MACKAY OF CLASHFERN L.C.

My Lords,This is an appeal brought with the leave of your Lordships' House granted on 23 November 1993 from an Order of Her Majesty's Court of Appeal, Criminal Division (Lord Taylor of Gosforth C.J., Henry, and Blofeld J.J.) whereby the appellant's appeal against conviction for manslaughter was dismissed.The conviction arose out of the conduct of an eye operation carried out at the Mayday Hospital, Croydon on 4 January 1987. The appellant was. during the latter part of that operation, the anaesthetist in charge of the patient.The operation was carried out by two surgeons supported by a team of five nurses and a theatre sister. Anaesthesia commenced at about 9.45 a.m. The patient was paralysed by injection of a drug and an endotracheal tube was inserted to enable the patient to breathe by mechanical means. At the start of the operation the anaesthetist was Dr. Said, a registrar. An operating department assistant was also present to help him. At about 10.30 a.m. there was a changeover of anaesthetists. The appellant was called to attend and take Dr. Said's place following which both Dr. Said and his assistant departed to deal with another operation elsewhere in the hospital. Another assistant was called to attend but did not arrive until later.At approximately 11.05 a.m. a disconnection occurred at the endotracheal tube connection. The supply of oxygen to the patient ceased and this led to cardiac arrest at 11.14 a.m. During this period the appellant failed to notice or remedy the disconnection.

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The appellant first became aware that something was amiss when an alarm sounded on the Dinamap machine, which monitors the patient's blood pressure. From the evidence it appears that some 4 ½ minutes would have elapsed between the disconnection and the sounding of this alarm. When this alarm sounded the appellant responded in various ways by checking the equipment and by administering atropine to raise the patient's pulse. But at no stage before the cardiac arrest did he check the integrity of the endotracheal tube connection. The disconnection itself was not discovered until after resuscitation measures had been commenced.For the prosecution it was alleged that the appellant was guilty of gross negligence in failing to notice or respond appropriately to obvious signs that a disconnection had occurred and that the patient had ceased to breathe. In particular the prosecution alleged that the appellant had failed to notice at various stages during the period after disconnection and before the arrest either occurred or became inevitable that the patient's chest was not moving, the dials on the mechanical ventilating machine were not operating, the disconnection in the endotracheal rube, that the alarm on the ventilator was not switched on and that the patient was becoming progressively blue. Further the prosecution alleged that the appellant had noticed but failed to understand the correct significance of the fact that during this period the patient's pulse had dropped and the patient's blood pressure had dropped.Two expert witnesses gave evidence for the prosecution. Professor Payne described the standard of care as "abysmal" while Professor Adams stated that in his view a competent anaesthetist should have recognised the signs of disconnection within 15 seconds and that the appellant's conduct amounted to "a gross dereliction of care".On behalf of the appellant it was conceded at his trial that he had been negligent. The issue was therefore whether his conduct was criminal.The expert witness called on behalf of the appellant at his trial was Dr. Monks. His evidence conceded that the appellant ought to have noticed the disconnection. But in his view there were factors which mitigated this failure. He considered that another independent problem either occurred or could have occurred before or at the same time as the disconnection which distracted the appellant's attention and activities. This problem would in his view have caused the patient's blood pressure to drop and may either have been a reaction to the drug being used to paralyse the patient or alternatively may have been caused by an ocular cardiac reflex.The appellant himself said in evidence that when the alarm sounded on the Dinamap machine his first thought was that the machine itself was not working properly. Having carried out checks on the machine he then thought that the patient had suffered an ocular cardiac reflex for which he administered atropine in two successive doses. Further attempts to administer atropine by intravenous drip and to check the patient's blood pressure

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followed until the cardiac arrest occurred. It had never occurred to him that a disconnection had taken place. He stated in evidence that ''after things went wrong I think I did panic a bit".In relation to the appellant's actions during this period Professor Payne had conceded during cross examination that "given that Dr. Adomako misled himself the efforts he made were not unreasonable". The period to which this evidence referred was obviously the period after the alarm had sounded on the Dinamap machine which was as I have said apparently some 4 ½ minutes after the disconnection occurred.The jury convicted the appellant of manslaughter by a majority of 11 to 1. The Court of Appeal Criminal Division dismissed the appellant's appeal against conviction but certified that a point of law of general public importance was involved in the decision to dismiss the appeal, namely:
"In cases of manslaughter by criminal negligence not involving driving but involving a breach of duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following Rex. v. Bateman (1925) 19 Cr. App. R. 8 and Andrews v. Director of Public Prosecutions [1937] AC 576 , without reference to the test of recklessness as defined in Reg. v. Lawrence (Stephen) [1982] A.C. 510 or as adapted to the circumstances of the case?"
The decision of the Court of Appeal is reported at [1994] Q.B. 302 along with a number of other cases involving similar questions of law. The Court of Appeal held that except in cases of motor manslaughter the ingredients which had to be proved to establish an offence of involuntary manslaughter by breach of duty were the existence of the duty, a breach of the duty which had caused death and gross negligence which the jury considered to justify a criminal conviction; the jury might properly find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled either with a determination nevertheless to run it or with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction or of inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address; and that, in the circumstances, the appeals of the two junior doctors and the electrician would be allowed and the appeal of the anaesthetist, namely Dr. Adomako, would be dismissed. The reason that the Court of Appeal excepted the cases of motor manslaughter and their formulation of the law was the decision of this House in Reg. v. Seymour (Edward) [1983] 2 A.C. 493 in which it was held that where manslaughter was charged and the circumstances were 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 direction which had been suggested in Reg. v. Lawrence (Stephen) [1982] A.C. 510 but that it was appropriate also

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to point out that in order to constitute the offence of manslaughter the risk of death being caused by the manner of the defendant's driving must be very high.In opening his very cogent argument for the appellant before your Lordships, counsel submitted that the law in this area should have the characteristics of clarity, certainty, intellectual coherence and general applicability and acceptability. For these reasons he said the law applying to involuntary manslaughter generally should involve a universal test and that test should be the test already applied in this House to motor manslaughter. He criticised the concept of gross negligence which was the basis of the judgment of the Court of Appeal submitting that its formulation involved circularity, the jury being told in effect to convict of a crime if they thought a crime had been committed and that accordingly using gross negligence as the conceptual basis for the crime of involuntary manslaughter was unsatisfactory and the court should apply the law laid down in Seymour [1983] 2 A.C. 493 generally to all cases of involuntary manslaughter or at least use this as the basis for providing general applicability and acceptability.Like the Court of Appeal your Lordships were treated to a considerable review of authority. I begin with Rex. v . Bateman 19 Cr. App. R. 8 and the opinion of Lord Hewart C.J., where he said, at pp. 10-11:
"In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence but on the amount of damage done. In a criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea."
Later he said, at pp 11-12:
"In explaining to juries the test which they should apply to determine whether negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But whatever epithet be used and whether an epithet be used or not, in order to establish

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criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."After dealing with a number of authorities the Lord Chief

Justice went on, at pp. 12-13:

"The law as laid down in these cases may be thus summarised: if a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. It is for the judge to direct the jury what standard to apply and for the jury to say whether that standard has been reached. The jury should not exact the highest, or a very high, standard, nor should they be content with a very low standard. The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness. No further observation need be made with regard to cases where the death is alleged to have been caused by indolence or carelessness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare. In the case of the quack, where the treatment has been proved to be incompetent and to have caused the patient's death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it, or would have known if he had paid any proper regard to the life and safety of his patient.

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"The foregoing observations deal with civil liability. To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."
Next I turn to Andrews v. Director of Public Prosecutions [1937] A.C. 576 which was a case of manslaughter through the dangerous driving of a motor car. In a speech with which all the other members of this House who sat agreed, Lord Atkin said, at pp. 581-582:
"Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved 'through successive differentiations and integrations' until it recognizes murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill but with the presence of an element of 'unlawfulness' which is the elusive factor. In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, that is, the omission of a duty to take care. I do not propose to discuss the development of this branch of the subject as treated in the successive treatises of Coke, Hale, Foster and East and in the judgments of the courts to be found either in directions to juries by individual judges or in the more considered pronouncements of the body of judges which preceded the formal Court of Crown Cases Reserved. Expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared. After all, manslaughter is a felony, and was capital, and men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence. The stricter view became apparent in prosecutions of medical men or men who professed medical or surgical skill for manslaughter by reason of negligence. As an instance I will cite Rex. v. Williamson (1807) 3 C. & P. 635 where a man who practised 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 Rex. v. Bateman 19 Cr. App. R. 8 a charge

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of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case."Lord Atkin then refers to the judgment of Lord Hewart C.J. from which I have already quoted and goes on, at p. 583:
"Here again I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman's case 19 Cr. App. R. 8 is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly."
In my opinion the law as stated in these two authorities is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and although its relationship to Reg. v . Seymour (Edward) [1983] 2 A.C. 493 is a matter to which I shall have to return, it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury

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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. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. 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.My Lords the view which I have stated of the correct basis in law for the crime of involuntary manslaughter accords I consider with the criteria stated by counsel although I have not reached the degree of precision in definition which he required, but in my opinion it has been reached so far as practicable and with a result which leaves the matter properly stated for a jury's determination.My Lords in my view the law as stated in Reg. v . Seymour (Edward) [1983] 2 A.C. 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991. It may be that cases of involuntary motor manslaughter will as a result become rare but I consider it unsatisfactory that there should be any exception to the generality of the statement which I have made, since such exception, in my view, gives rise to unnecessary complexity. For example in Kong Cheuk Kwan v The Queen (1985) 82 Cr. App. R. 18 it would give rise to unnecessary differences between the law applicable to those navigating vessels and the lookouts on the vessels.I consider it perfectly appropriate that the word "reckless" should be used in cases of involuntary manslaughter, but as Lord Atkin put it "in the ordinary connotation of that word". Examples in which this was done, to my mind, with complete accuracy are Reg. v . Stone [1977] Q.B. 354 and Reg. v . West London Coroner, Ex parte Gray [1988] Q.B. 467.In my opinion it is quite unnecessary in the context of gross negligence to give the detailed directions with regard to the meaning of the word "reckless" associated with Reg. v . Lawrence (Stephen) [1982] A.C. 510. The decision of the Court of Appeal Criminal Division in the other cases with which they were concerned at the same time as they heard the appeal in this

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case indicates that the circumstances in which involuntary manslaughter has to be considered may make the somewhat elaborate and rather rigid directions inappropriate. I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter may apply are so various that it is unwise to attempt to categorise or detail specimen directions. For my part I would not wish to go beyond the description of the basis in law which I have already given.In my view the summing up of the learned judge in the present case was a model of clarity in analysis of the facts and in setting out the law in a manner which was readily comprehensible by the jury. The summing up was criticised in respect of the inclusion of the following passage:
"Of course you will understand it is not for every humble man of the profession to have all that great skill of the great men in Harley Street but, on the other hand, they are not allowed to practice medicine in this country unless they have acquired a certain amount of skill. They are bound to show a reasonable amount of skill according to the circumstances of the case, and you have to judge them on the basis that they are skilled men, but not necessarily so skilled as more skilful men in the profession, and you can only convict them criminally if. in your judgment, they fall below the standard of skill which is the least qualification which any doctor should have. You should only convict a doctor of causing a death by negligence if you think he did something which no reasonably skilled doctor should have done."
The criticism was particularly of the latter part of this quotation in that it was open to the meaning that if the defendant did what no reasonably skilled doctor should have done it was open to the jury to convict him of causing death by negligence. Strictly speaking this passage is concerned with the statement of a necessary condition for a conviction by preventing a conviction unless that condition is satisfied. It is incorrect to treat it as stating a sufficient condition for conviction. In any event I consider that this passage in the context was making the point forcefully that the defendant in this case was not to be judged by the standard of more skilled doctors but by the standard of a reasonably competent doctor. There were many other passages in the summing up which emphasised the need for a high degree of negligence if the jury were to convict and read in that context I consider that the summing up cannot be faulted.For these reasons I am of the opinion that this appeal should be dismissed and that the certified question should be answered by saying:
"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 test 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

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refer to the definition of recklessness in Reg. v. Lawrence [1982] A.C. 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."We have been referred to the Consultation Paper by the Law Commission No. 135. Criminal Law. Involuntary Manslaughter An Overview (1994), and we have also been referred to a number of standard text books. I have also had the opportunity of considering the Note by Sir John Smith. [1994] Crim. L.R.. p. 292 since the hearing was completed. While I have not referred to these in detail I have derived considerable help in seeking to formulate my view as a result of studying them.I have reached the same conclusion on the basic law to be applied in this case as did the Court of Appeal. Personally I would not wish to state the law more elaborately than I have done. In particular I think it is difficult to take expressions used in particular cases out of the context of the cases in which they were used and enunciate them as if applying generally. This can I think lead to ambiguity and perhaps unnecessary complexity. The task of trial judges in setting out for the jury the issues of fact and the relevant law in cases of this class is a difficult and demanding one. I believe that the supreme test that should be satisfied in such directions is that they are comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular prior acquaintance with the law. To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice. The experienced counsel who assisted your Lordships in this appeal indicated that as a practical matter there was a danger in over elaboration of definition of the word "reckless". While therefore I have 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 a 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 the case of Lawrence.

LORD KEITH OF KINKEL

My Lords,For the reasons given in the speech of my noble and learned friend the Lord Chancellor, which I have read in draft and with which I agree, I too would dismiss the appeal and answer the certified question as he has proposed.

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LORD GOFF OF CHIEVELEY

My Lords,For the reasons given in the speech of my noble and learned friend the Lord Chancellor, which I have read in draft and with which I agree, I too would dismiss the appeal and answer the certified question as he has proposed.

LORD BROWNE-WILKINSON

My Lords,For the reasons given in the speech of my noble and learned friend the Lord Chancellor, which I have read in draft and with which I agree. I too would dismiss the appeal and answer the certified question as he has proposed.

LORD WOOLF

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend the Lord Chancellor, and with which I agree, I too would dismiss the appeal and answer the certified question as he has proposed.

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Cited in 1 later judgment