Sellu v The Crown

In gross negligence manslaughter, the jury must decide whether a breach of duty was gross and criminal. Expert medical evidence may assist on the expected professional standard, but it cannot displace the jury’s evaluative role. No fixed verbal formula is mandatory. However, the direction must adequately distinguish even serious errors of judgment from conduct that is truly exceptionally bad, involves an obvious risk of death, and properly attracts criminal condemnation.

In an omission case, causation requires affirmative proof that the breach shortened life. A breach occurring after the point at which survival could not be established cannot found liability for causing death.

The appellant, a consultant colorectal surgeon, was convicted at the Central Criminal Court of gross negligence manslaughter following the death of a patient with a perforated bowel. The prosecution alleged failures to secure antibiotics, reassess the patient, and arrange surgery promptly. The defence disputed negligence, grossness and causation.

On appeal, the appellant sought to adduce fresh medical evidence concerning mortality modelling, cirrhosis, an anticoagulant, and later epidemiological research. He also challenged the directions on causation and jury unanimity, and the direction on gross negligence manslaughter. The central issue was whether the jury had received sufficient legal guidance to identify the boundary between serious clinical error and criminally gross negligence.

1. Appeal allowed. The conviction was unsafe and was quashed. The judge’s direction on gross negligence manslaughter did not give the jury sufficient assistance to distinguish serious or very serious mistakes from criminal conduct.

2. The court rejected the fresh-evidence grounds. Applying Criminal Appeal Act 1968, the proposed evidence about P-POSSUM and cirrhosis could not materially affect the verdict and had not been adequately explained as absent from trial. The GenOSept and Dabigatran material likewise did not undermine causation or render the conviction unsafe.

3. The causation and unanimity grounds also failed. In an omission case, the prosecution must prove that the neglect shortened life. If the jury could not be sure that the patient would have survived at the relevant time, later omissions could not be a cause of death. A R v Brown direction may sometimes be needed, but the facts and way this case was put did not require one.

4. Applying R v Adomako [1995] 1 A.C. 171, the jury had to assess the seriousness of the breach in all the circumstances, including the risk of death. No prescribed form of words was required. Nevertheless, the judge had to explain that negligence, including serious mistakes and errors of judgment, did not suffice unless it was truly exceptionally bad and such a departure from proper standards as to be criminal.

5. Medical experts could express opinions about the expected standard of care. Whether conduct was gross was not, however, a medical question determinative of guilt. The repeated and insufficiently explained expert assertions that the appellant had been grossly negligent, coupled with the limited direction and absence of a route to verdict, created a real risk that the jury’s role as ultimate decision-maker had been supplanted.

• Court of Appeal (Criminal Division). The appeal against conviction was allowed and the conviction was quashed.
• Court of Appeal (Criminal Division), leave stage. An extension of time and leave to appeal were granted by the full court: [2015] EWCA Crim 1980.
• Central Criminal Court. On 5 November 2013, the appellant was convicted by a majority verdict of gross negligence manslaughter and sentenced to two and a half years’ imprisonment.