Gross Negligence Manslaughter
- Bateman 1927: '…in order to establish 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.' Furthermore, '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.'
- Seymour 1983: The fault required for involuntary manslaughter was Lawrence recklessness ("obvious and serious risk").
- Adomako 1994: Anaesthetist D's responsibility was to ensure V was able to breathe. D failed to notice that the oxygen supply had become disconnected. There is usually an alarm. D heard the alarm and checked everything except for the oxygen supply. Two expert witnesses had said any competent anaesthetist would have realised what was happening within 15 seconds. CA dismissed D's appeal against the conviction but asked the HL whether or not Bateman or Seymour should be followed in the sense of the fault element.
- Was there a duty of care?
- Has there been a breach of the duty of care?
- Has the breach led to the death of V?
- Should that breach be characterised as grossly negligent? Was there a risk of death to V through the conduct of D?
- Was there a duty of care?
- Hood 2003: husband/wife duty
- Evans 2009: contribution to a dangerous situation
- What did Lord MacKay mean by 'ordinary principles of the law of negligence' in Adomako?
- Wacker 2002: W, a Dutch driver, appealed against his conviction for the manslaughter of 58 Chinese illegal immigrants concealed in the back of his goods lorry who suffocated after he closed off the only ventilation point. W submitted that he had not owed the immigrants a duty of care because they had shared the same joint legal purpose. He contended that one of the principles of the law of negligence was ex turpi causa non oritur action i.e. the law of negligence does not recognise a duty of care between participants in a criminal enterprise. In Adomako Lord MacKay had stated that the ‘ordinary principles of negligence’ were to apply to gross negligence manslaughter. W was held guilty.
- Singh 1999: It's for the judge to decide if a duty existed
- Willoughby 2004: whether there CAN be a duty is a question for the judge but whether there is actually a duty is for the jury to decide on the facts (confirmed by Evans 2009)
- Has there been a breach of the duty of care?
- Duty can be breached by an act OR an omission
- e.g. D gives V double the recommended dose of painkillers, dies of overdose. (+)
- e.g. D doesn't call the ambulance after daughter V falls off trampoline and hits her head on a concrete wall. (-)
- Did the breach cause the death?
- Factual and legal causation (but for and intervening acts)
- Is it grossly negligent?
- Tony notices that his elderly mother is failing to eat most of her meals and has lost a substantial amount of weight. He twice tries to persuade her to go to the doctor, but she refuses. Two weeks later she is so ill that Tony's friend decides to call an ambulance for her. She is taken to hospital, but staff at the hospital fail to adequately monitor her food intake. She dies three weeks later from malnutrition.
- Was there a risk of death resulting from his omission?
- Bateman: Did the negligence go beyond a mere matter of compensation; was it conduct deserving of punishment?
- Adomako: Lord MacKay wouldn't give a detailed definition of gross negligence.
- Adomako, Misra: Would the reasonable person in D's position foresee a risk of death? Serious injury is not enough.
- Is the test circular?
- ‘The jury 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.' The Law Commission, amongst others, have suggested that 'this definition is circular – the jury should convict the accused of a crime if her behaviour was “criminal”...'
- Jurors haven't got enough guidance: they should convict for the crime if the behaviour is criminal...
- Misra 2004: Do we have a test? Yes.
- But... Do we know what the terms mean? No.