Criminal


Manslaughter - gross negligence - ingredients of offence sufficiently certain to comply with human rights convention

R v Misra and another: CA (Lord Justice Judge, Mr Justice Treacy and Mr Justice Bean):

8 October 2004



The victim underwent unremarkable surgery to repair his patella tendon but subsequently became infected with staphylococcus aureus which was not treated and he died four days later. The defendants were senior house officers and part of the team involved in the post-operative care of the deceased. They were each charged with manslaughter. It was alleged that they had failed to identify the severe infection suffered by the victim or to take steps to ensure that he received appropriate treatment, that that breach of the duty of care which they owed their patient amounted to gross negligence and that negligence was a substantial cause of the death. They were both convicted. The trial judge certified that 'the question of compliance of the crime of gross negligence manslaughter with the European Convention on Human Rights was one of some importance' and that, accordingly, the case was fit for appeal.


Michael Gledhill QC and John McNally (instructed by Edward Fail Bradshaw & Waterson, London) for Misra; Andrew Kennedy (instructed by Hempsons, Manchester) for Srivastava; Philip Mott QC and Hywel Jenkins (instructed by the Crown Prosecution Service, Headquarters) for the Crown; David Perry (instructed by the Treasury Solicitor) intervening, for the Attorney-General.



Held, dismissing the appeal, that the ingredients of the offence of manslaughter by gross negligence had been clearly identified by the House of Lords in R v Adomako [1995] 1 AC 171; that the question for the jury was not whether the defendant's negligence was gross and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal; and that, accordingly, the offence was not incompatible with the convention since there was no uncertainty which offended against article 7, or, indeed, against any principle of common law.



Extradition - obtaining money transfer by deception - extradition warrant not identifying account debited with amount transferred - identification of account not essential provided debit of one account causally connected to credit of another

Holmes v The Governor of Brixton Prison and another: QBD (Mr Justice Henriques and Mr Justice Stanley Burnton):

20 August 2004


Transfer deceit: not essential to identigy account debited
The applicant allegedly issued a payment of more than $15 million from his employer, a German bank, to an account at a bank in Amsterdam, using the passwords of two of his colleagues without authorisation in order to conceal his involvement. Since the amount was only credited subject to a reservation, the applicant confirmed, in three messages, that the transfer was authorised. The reservation was lifted on the basis of those confirmations. The German government requested the applicant's extradition using an arrest warrant issued by the German authorities. The secretary of state specified that the conduct of which the applicant was accused in the warrant would have constituted, among other things, the offence of obtaining a money transfer by deception under section 15A of the Theft (Amendment) Act 1996, had it occurred in the UK. The applicant was subsequently remanded in custody pending the decision on extradition. The applicant, who argued that the conduct alleged in the warrant did not disclose any operative deception since in English law it was impossible to deceive a computer, applied for a writ of habeas corpus.


Mark Summers (instructed by Jefferies, Westcliff-on-Sea) for the applicant; Clair Dobbin (instructed by Crown Prosecution Service, Ludgate Hill) for the respondents.



Held, that despite the fact that there was no specific evidence that any debit was made to an account, the court was entitled to take judicial notice of the common banking practice whereby a money transfer could not be made without a bank account being debited with the amount of that transfer; that, moreover, for the purposes of section 15A of the 1996 Act, it was not essential to identify the particular account that had been debited as the concomitant to the credit, provided there was a debiting of an account which was causally connected with the credit; that, although it was not possible to deceive a machine in English law, the three messages of confirmation constituted deceptions of human beings; and that, accordingly, the offence of obtaining a money transfer by deception could be made out, and the application would be dismissed.



Loocal Government



Claimant's dependent child subject to immigration control - statute requiring child to be disregarded in determining whether claimant having priority need for accommodation - statute discriminating on ground of national origin so incompatible with convention right to enjoy without discrimination right to respect for home and family life

R (Morris) v Westminster City Council: QBD (Mr Justice Keith): 7 October 2004


The claimant and her daughter came to the UK from Mauritius. The claimant obtained a British passport but her daughter was not thought eligible for British citizenship. The council refused the claimant's application for accommodation on the basis that she could not rely on the need to accommodate her daughter as giving her a priority need for accommodation because her daughter was subject to immigration control. The claimant sought judicial review.


Matthew Hutchings (instructed by TMK Solicitors, Southend-on-Sea) for the claimant; David Warner (instructed by Director of Legal and Administrative Services, Westminster City Council) for the council; Lisa Giovannetti (instructed by Treasury Solicitor) for the first secretary of state as an interested party.


Held, granting judicial review by way of a declaration of incompatibility, that in determining whether a British citizen had a priority need for accommodation, section 185(4) of the Housing Act 1996 required a dependent child who was subject to immigration control to be disregarded; that the facts of the case fell within the ambit of the right to respect for home and family life under article 8 of the European Convention on Human Rights and so engaged article 14, which required that right to be enjoyed without discrimination; that there was a difference in treatment between the claimant and her chosen comparators which was on the prohibited ground of her national origin and was not justifiable, and so there had been an infringement of her article 14 right; that section 185(4) of the 1996 Act was not capable of being read in such a way as to make it compatible with article 14; and that, accordingly, a declaration of incompatibility should be made. (WLR)