Surgeon wins appeal against conviction of gross negligence manslaughter
In November 2016, Mr David Sellu had his conviction for gross negligence manslaughter quashed by the Court of Appeal. He was originally sentenced to two and a half years’ imprisonment in late 2013, of which he served 15 months before being released on licence.
On 5 February 2010, Mr Hughes underwent elective knee replacement surgery at the Clementine Churchill Hospital. Post-operatively, Mr Hughes developed bowel complications and was referred to Mr David Sellu, a consultant colorectal surgeon. The facts of the case are extensive and, in places, complex.
In summary, the prosecution case at trial was that Mr Sellu had failed to recognise the seriousness of Mr Hughes’s condition and respond to that in an appropriate time frame. The case focused on Mr Sellu’s standard of care over a period of approximately 25 hours. Mr Sellu did operate on Mr Hughes to repair a perforated bowel but Mr Hughes died two days later.
In November 2013, a jury convicted Mr Sellu of gross negligence manslaughter by a majority of 10-2.
Having obtained permission to appeal in late 2015, Mr Sellu’s appeal was then pursued on three distinct grounds. The first ground of appeal related to fresh evidence. This ground of appeal was linked to:
- Evidence as to the use of a scoring system, known as POSSUM, to give a statistical probability of death at various points in time
- Mr Hughes’ health condition and whether this may have contributed to his death
- New research into sepsis and patient outcomes
The Court of Appeal rejected this ground of appeal for two reasons. Firstly, in respect of the POSSUM system and evidence relating to Mr Hughes’ health, this evidence was available at the time of the trial and there was no reasonable explanation for why this material was not put forward then.
The Court also took the view that the material before them at the time of the appeal did not affect the safety of the conviction.
The second ground of appeal related to the approach taken by the Judge in relation to causation. The Court of Appeal rejected this ground on the basis that the Judge had sufficiently directed the jury on the issue. They also held that there was no need for a Brown direction. Such direction would be used where a jury is directed that they must agree on one particular facet of the negligence alleged.
The third ground of appeal related to the directions given by the Judge on what amounted to ‘gross negligence’ and such directions were deemed by the Court of Appeal to be insufficient. The Court of Appeal did not prescribe a form of words that ought to be used in cases but took the view that the Judge ought to have gone further in his direction that merely asking the jury to determine whether Mr Sellu’s actions fell below the standard ‘in a way that was gross or severe’.
It was on this basis that Mr Sellu’s appeal succeeded.
It is of interest that in their Judgment, the Court of Appeal took particular note of the expert evidence given at trial and they noted a concern that experts were invited to express an opinion on whether Mr Sellu had been grossly negligent, which is of course the ultimate issue for the jury and not for the experts. Any medical professionals that act as experts in criminal proceedings ought to take note of the concerns raised by the Court of Appeal.
The overall outcome of this case is clearly a positive result for Mr Sellu. The CPS has indicated that they will not be pursuing a re-trial. However, the judgment does not prescribe how a jury ought to be directed in such cases and does not change the law in this area. Instead, the case makes clear that a jury will require clear assistance in the directions given in what are very challenging cases.
This case has been widely publicised and Mr Sellu’s original conviction caused widespread concern throughout the medical profession. Following the outcome of the appeal, the Royal College of Surgeons released a comment inviting the judiciary and the Government to urgently review the lessons learnt from Mr Sellu’s case when considering future criminal prosecutions1.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.