Gross Negligence Manslaughter

Front 1

Seymour (HL) (old law)

Back 1

Seemed to assume that manslaughter by gross negligence had been subsumed into caldwell/lawrence recklessness manslaughter.

Front 2

Adomako (duty of care) (breach of duty) (GN)

Back 2

Effectively overruled seymour. D was an anaesthetist and during an operation a tube became disconnected. D only became aware of this 4-5mins later. He carried out a number of checks and failed to discover the problem and the patient died. Expert's for the prosecution described this level of care 'abysmal' as he should have been able to identify the problem in about 15seconds.

D was to be judged by the standard expected of a reasonable doctor

'The essence of the matter...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'

Front 3

Establishing liability

Back 3

Duty of care

Breach of duty

Breach of duty causes death

Breach of duty amounts to gross negligence

Front 4

R v Wacker (duty of care)

Back 4

D was a truck driver trying to smuggle 58 Chinese illegal immigrants into the country. He closed an airvent of the container to disguise the noise of people as he went through customs. On arrival at dover, container was searched and they found 58 dead bodies. He was convicted of 58 counts of manslaughter and appealed arguing that he didn't owe a duty of care to the people in negligence law. court said the criminal law would not be disapplied just because civil law disapplied. Criminal law had its own public policy aim and the criminal law required a different approach.

where it is D's failure to act which is claimed to be grossly negligent, the normal rules of omission applies to determine whether D was under a duty to act.

Front 5

R v Evans (Gemma) (duty of care)

Back 5

Emphasised it was a question of law so the judge must decide.

Front 6

Breach of duty

Back 6

Jury must decide if D's actions fell below that expected of a resonable person

Front 7

Breach of duty caused death

Back 7

normal rules of causation apply

In cases where a person has a special skill, we talk of the reasonably skilled person

Front 8

Bateman (GN)

Back 8

there must be negligence over and above that which is sufficient to establish civil liability

Front 9

Andrews v DPP (GN)

Back 9

Simple lack of care would not be sufficient

Front 10

Stone & Dobinson (GN)

Back 10

Courts have reffered to lesser type or risks e.g. to health and welfare

Front 11

Singh and later Misra (GN)

Back 11

stressed that only a risk of death would suffice. In some respects this is setting a higher threshold than unlawful and dangerous act manslaughter.

Front 12

AG's Reference no 2 1999 (GN)

Back 12

Can D be properly convicted of manslaughter by gross negligence in the absence as to that defendant's state of mind. 'Evidence of his state of mind is not a prerequisite to a conviction of manslaughter by GN.' Adomako test in objective.

Front 13

R v Mark (GN)

Back 13

D tried to argue that the position in AGs reference no 2 of 1999 would have to change after R and G decision on the meaning of recklessness. He argued that you would have to show D was aware of the risk of death.

Front 14

R v Misra and another (GN)

Back 14

Ds charged with manslaughter for failing to appreciate the seriousness of their patient's condition. Patient had gone into hospital for knee surgery but the knee had become infected and he started to become very ill. Both house doctors thought he was suffering from a stomach bug and failed to notice the infection which led to toxic shock syndrome. Patient died. First they argued manslaughter by GN allows for conviction without mens rea. They said adding the word 'gross' to negligence did not provide a mental element. It was further argued that the words 'gross negligence' put undue emphasis on conduct instead of focusing on intent. The risk of finding someone guilty just because their conduct was so bad without asking whether they had a guilty mind to match was present. This had already been argued in Adomako but rejected.

'A defendant may properly be convicted of manslaughter by GH in absence of his state of mind.'

They also argued that GN manslaughter should be replaced with subjective recklessness manslaughter after R and g but this was rejected.

Front 15

Criticism of manslaughter by GN

Back 15

1)Test is circular-it is argued that there is no guidance for the jury as to when something is GN. Adomako recognised there was circularity in the test but said it was not fatal to it being the correct test. People have made the claim that it leaves a question to jury-is the defendant's conduct criminal? This was argued at length in Misra. The judge said the jury is not deciding whether the conduct is criminal but whether the defendant ought to be convicted on some unprincipled basis, the question for the jury is not whether the defendant's negligence was gross and whether additionally it was criminal but whether his behaviour was grossly negligent and subsequently criminal.

2)it is insufficiently certain so as to the compatible with Art 7 of the ECHR. This argument was also rejected in Misra. In this case they said the test was sufficiently clear and that the elements of circularity do not offend Art 7.